UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2010
OR
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|
o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
FOR THE TRANSITION PERIOD FROM
TO
Commission file number: 1-10989
Ventas, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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61-1055020
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(State or Other Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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111 S. Wacker Drive, Suite 4800
Chicago, Illinois
(Address of Principal Executive Offices)
60606
(Zip Code)
(877) 483-6827
(Registrants Telephone Number, Including Area Code)
Not Applicable
(Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes
þ
No
o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such
files).
Yes
þ
No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
o
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Smaller reporting company
o
|
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes
o
No
þ
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of
the latest practicable date.
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Class of Common Stock:
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Outstanding at July 26, 2010:
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Common Stock, $0.25 par value
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157,080,577
|
VENTAS, INC.
FORM 10-Q
INDEX
2
PART IFINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VENTAS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share amounts)
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|
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June 30,
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December 31,
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2010
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2009
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|
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(Unaudited)
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(Audited)
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Assets
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|
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Real estate investments:
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|
|
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Land
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$
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556,469
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|
|
$
|
557,276
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Buildings and improvements
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5,732,421
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|
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5,722,837
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Construction in progress
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3,788
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|
12,508
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|
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|
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|
|
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6,292,678
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|
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6,292,621
|
|
Accumulated depreciation
|
|
|
(1,274,088
|
)
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|
|
(1,177,911
|
)
|
|
|
|
|
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|
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Net real estate property
|
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|
5,018,590
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5,114,710
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Loans receivable, net
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140,870
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131,887
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|
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|
|
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Net real estate investments
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5,159,460
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5,246,597
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Cash and cash equivalents
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27,794
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107,397
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Escrow deposits and restricted cash
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43,484
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39,832
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Deferred financing costs, net
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24,891
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|
29,252
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Other
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206,488
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193,167
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|
|
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Total assets
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$
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5,462,117
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$
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5,616,245
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Liabilities and equity
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Liabilities:
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Senior notes payable and other debt
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$
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2,580,849
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$
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2,670,101
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Accrued interest
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16,682
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17,974
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Accounts payable and other liabilities
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181,343
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190,445
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Deferred income taxes
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251,829
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253,665
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|
|
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Total liabilities
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3,030,703
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3,132,185
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Commitments and contingencies
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Equity:
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Ventas stockholders equity:
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Preferred stock, $1.00 par value; 10,000 shares authorized, unissued
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Common stock, $0.25 par value; 300,000 shares authorized; 156,872
and 156,627 shares issued at June 30, 2010 and December 31,
2009, respectively
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39,343
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|
|
|
39,160
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Capital in excess of par value
|
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2,583,412
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|
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|
2,573,039
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Accumulated other comprehensive income
|
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16,506
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|
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19,669
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|
Retained earnings (deficit)
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|
(222,853
|
)
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|
|
(165,710
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)
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Treasury stock, 0 and 15 shares at June 30, 2010 and December 31,
2009, respectively
|
|
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(647
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)
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|
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|
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Total Ventas stockholders equity
|
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|
2,416,408
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2,465,511
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Noncontrolling interest
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15,006
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18,549
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|
|
|
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|
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Total equity
|
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|
2,431,414
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|
2,484,060
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Total liabilities and equity
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|
$
|
5,462,117
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|
$
|
5,616,245
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|
|
|
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|
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|
See accompanying notes.
3
VENTAS, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share amounts)
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For the Three Months
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For the Six Months
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Ended June 30,
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Ended June 30,
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2010
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2009
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2010
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2009
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|
Revenues:
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Rental income
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$
|
130,284
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|
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$
|
124,612
|
|
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$
|
259,463
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|
|
$
|
247,010
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|
Resident fees and services
|
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|
109,867
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|
|
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103,399
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|
|
|
218,353
|
|
|
|
206,338
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Income from loans and investments
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|
3,705
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|
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|
3,333
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|
7,322
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|
|
|
6,614
|
|
Interest and other income
|
|
|
122
|
|
|
|
108
|
|
|
|
385
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|
|
|
394
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|
|
|
|
|
|
|
|
|
|
|
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|
Total revenues
|
|
|
243,978
|
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|
|
231,452
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|
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|
485,523
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460,356
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Expenses:
|
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|
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|
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Interest
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|
44,045
|
|
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|
43,994
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|
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|
88,345
|
|
|
|
89,924
|
|
Depreciation and amortization
|
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|
50,185
|
|
|
|
48,643
|
|
|
|
102,661
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|
|
|
98,141
|
|
Property-level operating expenses
|
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75,183
|
|
|
|
72,564
|
|
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|
154,062
|
|
|
|
148,032
|
|
General, administrative and professional fees (including non-cash
stock-based compensation expense of $3,057 and $3,078 for the three
months ended 2010 and 2009, respectively, and $6,089 and $6,137
for the six months ended 2010 and 2009, respectively)
|
|
|
9,858
|
|
|
|
10,355
|
|
|
|
20,541
|
|
|
|
20,953
|
|
Foreign currency loss (gain)
|
|
|
121
|
|
|
|
5
|
|
|
|
15
|
|
|
|
(1
|
)
|
Loss on extinguishment of debt
|
|
|
6,549
|
|
|
|
5,975
|
|
|
|
6,549
|
|
|
|
6,080
|
|
Merger-related expenses and deal costs
|
|
|
4,207
|
|
|
|
3,502
|
|
|
|
6,526
|
|
|
|
5,556
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
190,148
|
|
|
|
185,038
|
|
|
|
378,699
|
|
|
|
368,685
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued operations
and noncontrolling
interest
|
|
|
53,830
|
|
|
|
46,414
|
|
|
|
106,824
|
|
|
|
91,671
|
|
Income tax (expense) benefit
|
|
|
(409
|
)
|
|
|
395
|
|
|
|
(695
|
)
|
|
|
942
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
53,421
|
|
|
|
46,809
|
|
|
|
106,129
|
|
|
|
92,613
|
|
Discontinued operations
|
|
|
5,544
|
|
|
|
42,374
|
|
|
|
6,004
|
|
|
|
71,539
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
58,965
|
|
|
|
89,183
|
|
|
|
112,133
|
|
|
|
164,152
|
|
Net income attributable to noncontrolling interest (net of tax
of $559 and $541
for the three months ended 2010 and 2009, respectively,
and $978 and
$931 for the six months ended 2010 and 2009, respectively)
|
|
|
898
|
|
|
|
802
|
|
|
|
1,447
|
|
|
|
1,543
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
58,067
|
|
|
$
|
88,381
|
|
|
$
|
110,686
|
|
|
$
|
162,609
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
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Earnings per common share:
|
|
|
|
|
|
|
|
|
|
|
|
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Basic:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common
stockholders
|
|
$
|
0.33
|
|
|
$
|
0.30
|
|
|
$
|
0.67
|
|
|
$
|
0.61
|
|
Discontinued operations
|
|
|
0.04
|
|
|
|
0.27
|
|
|
|
0.04
|
|
|
|
0.48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
0.37
|
|
|
$
|
0.57
|
|
|
$
|
0.71
|
|
|
$
|
1.09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common
stockholders
|
|
$
|
0.33
|
|
|
$
|
0.30
|
|
|
$
|
0.66
|
|
|
$
|
0.61
|
|
Discontinued operations
|
|
|
0.04
|
|
|
|
0.27
|
|
|
|
0.04
|
|
|
|
0.48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
0.37
|
|
|
$
|
0.57
|
|
|
$
|
0.70
|
|
|
$
|
1.09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares used in computing
earnings per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
156,611
|
|
|
|
154,441
|
|
|
|
156,533
|
|
|
|
148,798
|
|
Diluted
|
|
|
157,441
|
|
|
|
154,510
|
|
|
|
157,206
|
|
|
|
148,859
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends declared per common share
|
|
$
|
0.535
|
|
|
$
|
0.5125
|
|
|
$
|
1.07
|
|
|
$
|
1.025
|
|
See accompanying notes.
4
VENTAS, INC.
CONSOLIDATED STATEMENTS OF EQUITY
For the Six Months Ended June 30, 2010 and the Year Ended December 31, 2009
(In thousands, except per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
|
|
|
Capital in
|
|
|
Other
|
|
|
Retained
|
|
|
|
|
|
|
Total Ventas
|
|
|
|
|
|
|
|
|
|
Stock Par
|
|
|
Excess of
|
|
|
Comprehensive
|
|
|
Earnings
|
|
|
Treasury
|
|
|
Stockholders
|
|
|
Noncontrolling
|
|
|
Total
|
|
|
|
Value
|
|
|
Par Value
|
|
|
Income (Loss)
|
|
|
(Deficit)
|
|
|
Stock
|
|
|
Equity
|
|
|
Interest
|
|
|
Equity
|
|
Balance at January 1, 2009
|
|
$
|
35,825
|
|
|
$
|
2,264,125
|
|
|
$
|
(21,089
|
)
|
|
$
|
(117,806
|
)
|
|
$
|
(457
|
)
|
|
$
|
2,160,598
|
|
|
$
|
19,137
|
|
|
$
|
2,179,735
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
266,495
|
|
|
|
|
|
|
|
266,495
|
|
|
|
2,865
|
|
|
|
269,360
|
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
23,552
|
|
|
|
|
|
|
|
|
|
|
|
23,552
|
|
|
|
|
|
|
|
23,552
|
|
Unrealized gain on marketable debt securities
|
|
|
|
|
|
|
|
|
|
|
17,327
|
|
|
|
|
|
|
|
|
|
|
|
17,327
|
|
|
|
|
|
|
|
17,327
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
(121
|
)
|
|
|
|
|
|
|
|
|
|
|
(121
|
)
|
|
|
|
|
|
|
(121
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
307,253
|
|
|
|
2,865
|
|
|
|
310,118
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in noncontrolling interest
|
|
|
|
|
|
|
334
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
334
|
|
|
|
(3,453
|
)
|
|
|
(3,119
|
)
|
Dividends to common stockholders $2.05
per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(314,399
|
)
|
|
|
|
|
|
|
(314,399
|
)
|
|
|
|
|
|
|
(314,399
|
)
|
Issuance of common stock
|
|
|
3,266
|
|
|
|
295,935
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
299,201
|
|
|
|
|
|
|
|
299,201
|
|
Issuance of common stock for stock plans
|
|
|
30
|
|
|
|
12,819
|
|
|
|
|
|
|
|
|
|
|
|
175
|
|
|
|
13,024
|
|
|
|
|
|
|
|
13,024
|
|
Grant of restricted stock, net of forfeitures
|
|
|
39
|
|
|
|
(174
|
)
|
|
|
|
|
|
|
|
|
|
|
(365
|
)
|
|
|
(500
|
)
|
|
|
|
|
|
|
(500
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009
|
|
|
39,160
|
|
|
|
2,573,039
|
|
|
|
19,669
|
|
|
|
(165,710
|
)
|
|
|
(647
|
)
|
|
|
2,465,511
|
|
|
|
18,549
|
|
|
|
2,484,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
110,686
|
|
|
|
|
|
|
|
110,686
|
|
|
|
1,447
|
|
|
|
112,133
|
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
(2,150
|
)
|
|
|
|
|
|
|
|
|
|
|
(2,150
|
)
|
|
|
|
|
|
|
(2,150
|
)
|
Unrealized loss on marketable debt securities
|
|
|
|
|
|
|
|
|
|
|
(869
|
)
|
|
|
|
|
|
|
|
|
|
|
(869
|
)
|
|
|
|
|
|
|
(869
|
)
|
Other
|
|
|
|
|
|
|
|
|
|
|
(144
|
)
|
|
|
|
|
|
|
|
|
|
|
(144
|
)
|
|
|
|
|
|
|
(144
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107,523
|
|
|
|
1,447
|
|
|
|
108,970
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in noncontrolling interest
|
|
|
|
|
|
|
2,246
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,246
|
|
|
|
(4,990
|
)
|
|
|
(2,744
|
)
|
Dividends to common stockholders $1.07
per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(167,829
|
)
|
|
|
|
|
|
|
(167,829
|
)
|
|
|
|
|
|
|
(167,829
|
)
|
Issuance of common stock for stock plans
|
|
|
149
|
|
|
|
7,155
|
|
|
|
|
|
|
|
|
|
|
|
2,455
|
|
|
|
9,759
|
|
|
|
|
|
|
|
9,759
|
|
Grant of restricted stock, net of forfeitures
|
|
|
34
|
|
|
|
972
|
|
|
|
|
|
|
|
|
|
|
|
(1,808
|
)
|
|
|
(802
|
)
|
|
|
|
|
|
|
(802
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at June 30, 2010
|
|
$
|
39,343
|
|
|
$
|
2,583,412
|
|
|
$
|
16,506
|
|
|
$
|
(222,853
|
)
|
|
$
|
|
|
|
$
|
2,416,408
|
|
|
$
|
15,006
|
|
|
$
|
2,431,414
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
5
VENTAS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
112,133
|
|
|
$
|
164,152
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
Depreciation and amortization (including amounts in discontinued operations)
|
|
|
102,722
|
|
|
|
98,815
|
|
Amortization of deferred revenue and lease intangibles, net
|
|
|
(2,943
|
)
|
|
|
(3,587
|
)
|
Other amortization expenses
|
|
|
4,367
|
|
|
|
2,374
|
|
Stock-based compensation
|
|
|
6,089
|
|
|
|
6,137
|
|
Straight-lining of rental income
|
|
|
(4,975
|
)
|
|
|
(5,990
|
)
|
Loss on extinguishment of debt
|
|
|
6,549
|
|
|
|
6,080
|
|
Net gain on sale of real estate assets
|
|
|
(5,225
|
)
|
|
|
(66,891
|
)
|
Income tax expense (benefit)
|
|
|
695
|
|
|
|
(942
|
)
|
Other
|
|
|
(238
|
)
|
|
|
(12
|
)
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
(Increase) decrease in other assets
|
|
|
(5,174
|
)
|
|
|
1,426
|
|
Decrease in accrued interest
|
|
|
(1,292
|
)
|
|
|
(4,979
|
)
|
Decrease in accounts payable and other liabilities
|
|
|
(4,991
|
)
|
|
|
(1,441
|
)
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
207,717
|
|
|
|
195,142
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Net investment in real estate property
|
|
|
(22,915
|
)
|
|
|
(19,358
|
)
|
Investment in loans receivable
|
|
|
(15,796
|
)
|
|
|
(7,373
|
)
|
Proceeds from real estate disposals
|
|
|
23,029
|
|
|
|
56,614
|
|
Proceeds from loans receivable
|
|
|
1,323
|
|
|
|
7,701
|
|
Capital expenditures
|
|
|
(7,078
|
)
|
|
|
(4,028
|
)
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities
|
|
|
(21,437
|
)
|
|
|
33,556
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Net change in borrowings under revolving credit facilities
|
|
|
117,280
|
|
|
|
(289,928
|
)
|
Proceeds from debt
|
|
|
696
|
|
|
|
301,115
|
|
Repayment of debt
|
|
|
(215,171
|
)
|
|
|
(503,016
|
)
|
Payment of deferred financing costs
|
|
|
(1,840
|
)
|
|
|
(13,422
|
)
|
Issuance of common stock, net
|
|
|
|
|
|
|
299,201
|
|
Cash distribution to common stockholders
|
|
|
(167,829
|
)
|
|
|
(153,815
|
)
|
Contributions from noncontrolling interest
|
|
|
633
|
|
|
|
306
|
|
Distributions to noncontrolling interest
|
|
|
(4,277
|
)
|
|
|
(5,024
|
)
|
Other
|
|
|
4,673
|
|
|
|
5,457
|
|
|
|
|
|
|
|
|
Net cash used in financing activities
|
|
|
(265,835
|
)
|
|
|
(359,126
|
)
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
|
(79,555
|
)
|
|
|
(130,428
|
)
|
Effect of foreign currency translation on cash and cash equivalents
|
|
|
(48
|
)
|
|
|
139
|
|
Cash and cash equivalents at beginning of period
|
|
|
107,397
|
|
|
|
176,812
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
27,794
|
|
|
$
|
46,523
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental schedule of non-cash activities:
|
|
|
|
|
|
|
|
|
Assets and liabilities assumed from acquisitions:
|
|
|
|
|
|
|
|
|
Real estate investments
|
|
$
|
496
|
|
|
$
|
8,307
|
|
Utilization of escrow funds held for an Internal Revenue Code Section 1031 exchange
|
|
|
|
|
|
|
(9,295
|
)
|
Other assets acquired
|
|
|
(355
|
)
|
|
|
82
|
|
Other liabilities
|
|
|
141
|
|
|
|
(1,886
|
)
|
Noncontrolling interest
|
|
|
|
|
|
|
980
|
|
Debt transferred on the sale of assets
|
|
|
|
|
|
|
38,759
|
|
See accompanying notes.
6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 DESCRIPTION OF BUSINESS
Ventas, Inc. (together with its subsidiaries, unless otherwise indicated or except where the
context otherwise requires, we, us or our) is a real estate investment trust (REIT) with a
geographically diverse portfolio of seniors housing and healthcare properties in the United States
and Canada. As of June 30, 2010, this portfolio consisted of 503 assets: 242 seniors housing
communities, 187 skilled nursing facilities, 40 hospitals and 34 medical office buildings (MOBs)
and other properties in 43 states and two Canadian provinces. With the exception of our seniors
housing communities that are managed by independent third parties, such as Sunrise Senior Living,
Inc. (together with its subsidiaries, Sunrise), pursuant to long-term management agreements and
the majority of our MOBs, we lease our properties to healthcare operating companies under
triple-net or absolute-net leases, which require the tenants to pay all property-related
expenses. We also had real estate loan investments relating to seniors housing and healthcare
companies or properties as of June 30, 2010.
We conduct substantially all of our business through our wholly owned subsidiaries, Ventas
Realty, Limited Partnership (Ventas Realty), PSLT OP, L.P. and Ventas SSL, Inc. Our primary
business consists of acquiring, financing and owning seniors housing and healthcare properties and
leasing those properties to third parties or operating those properties through independent third
party managers.
NOTE 2 ACCOUNTING POLICIES
The accompanying Consolidated Financial Statements have been prepared in accordance with U.S.
generally accepted accounting principles (GAAP) for interim financial information set forth in
the Accounting Standards Codification (ASC), as published by the Financial Accounting Standards
Board (FASB), and with the Securities and Exchange Commission (SEC) instructions to Form 10-Q
and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by GAAP for complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary for a fair statement of
results for the interim period have been included. Operating results for the three and six months
ended June 30, 2010 are not necessarily an indication of the results that may be expected for the
year ending December 31, 2010. The accompanying Consolidated Financial Statements and related notes
should be read in conjunction with the consolidated financial statements and notes thereto included
in our Current Report on Form 8-K filed with the SEC on May 3, 2010. Certain prior period amounts
have been reclassified to conform to the current period presentation.
Revenue Recognition
Certain of our leases, including the majority of our leases with Brookdale Senior Living Inc.
(together with its subsidiaries, Brookdale Senior Living), provide for periodic and determinable
increases in base rent. Base rental revenues under these leases are recognized on a straight-line
basis over the terms of the applicable lease. Income on our straight-line revenue is recognized
when collectibility is reasonably assured, and in the event we determine that collectibility of
straight-line revenue is not reasonably assured, we establish an allowance for estimated losses.
Recognizing rental income on a straight-line basis results in recognized revenue exceeding cash
amounts contractually due from our tenants during the first half of the term for leases that have
straight-line treatment. The cumulative excess is included in other assets, net of allowances, on
our Consolidated Balance Sheets and totaled $82.4 million and $78.4 million at June 30, 2010 and
December 31, 2009, respectively.
Our master lease agreements with Kindred Healthcare, Inc. (together with its subsidiaries,
Kindred) (the Kindred Master Leases) and certain of our other leases provide for an annual
increase in rental payments only if certain revenue parameters or other substantive contingencies
are met. We recognize the increased rental revenue under these leases only if the revenue
parameters or other substantive contingencies are met, rather than on a straight-line basis over
the term of the applicable lease.
We recognize income from rent, lease termination fees and all other income when all of the
following criteria are met in accordance with SEC Staff Accounting Bulletin 104: (i) the agreement
has been fully executed and delivered; (ii) services have been rendered; (iii) the amount is fixed
or determinable; and (iv) collectibility is reasonably assured.
We recognize resident fees and services, other than move-in fees, monthly as services are
provided. Move-in fees, a component of resident fees and services, are recognized on a
straight-line basis over the term of the applicable lease agreement. Lease agreements with
residents generally have a term of one year and are cancelable by the resident with 30 days
notice.
7
Fair Values of Financial Instruments
The following methods and assumptions were used in estimating fair value disclosures for
financial instruments.
|
|
|
Cash and cash equivalents: The carrying amount of unrestricted cash and cash equivalents
reported in our Consolidated Balance Sheets approximates fair value due to the short
maturity of these instruments.
|
|
|
|
Loans receivable: The fair value of loans receivable is estimated by discounting the
future cash flows using current interest rates at which similar loans would be made to
borrowers with similar credit ratings and for the same remaining maturities.
|
|
|
|
Marketable debt securities: The fair value of marketable debt securities is estimated
using quoted prices in active markets for identical assets or liabilities that we have the
ability to access.
|
|
|
|
Senior notes payable and other debt: The fair values of borrowings are estimated by
discounting the future cash flows using current interest rates at which similar borrowings
could be made by us.
|
Recently Issued or Adopted Accounting Standards
On January 1, 2010, we adopted Accounting Standards Update (ASU) No. 2009-17,
Consolidation
(Topic 810): Improvements to Financial Reporting by Enterprises Involved with Variable Interest
Entities
. ASU No. 2009-17 requires an enterprise to analyze whether its variable interest gives it
a controlling financial interest in a variable interest entity (VIE). This analysis identifies
the primary beneficiary of a VIE as the enterprise that has both of the following characteristics:
(i) the power to direct the activities of the VIE that most significantly impact the entitys
economic performance; and (ii) the obligation to absorb losses or receive benefits of the VIE that
could potentially be significant to the entity. ASU No. 2009-17 requires an enterprise to perform
this analysis on an ongoing basis and requires additional disclosures about an enterprises
involvement in VIEs. The adoption of ASU No. 2009-17 did not impact our Consolidated Financial
Statements.
On January 1, 2010, we adopted ASU No. 2010-02,
Consolidation (Topic 810): Accounting and
Reporting for Decreases in Ownership of a Subsidiarya Scope Clarification
. ASU No. 2010-02
provides additional clarification regarding decrease-in-ownership provisions and expands the
disclosures required upon deconsolidation of a subsidiary. The adoption of ASU 2010-02 did not
impact our Consolidated Financial Statements.
On January 1, 2010, we adopted ASU No. 2010-06,
Fair Value Measurements and Disclosures (Topic
820): Improving Disclosures about Fair Value Measurements
. ASU No. 2010-06 adds new requirements
for disclosures about transfers into and out of Levels 1 and 2 and separate disclosures about
purchases, sales, issuances and settlements relating to Level 3 measurements. ASU No. 2010-06 is
partially effective for periods beginning after December 15, 2009; requirements related to
additional Level 3 disclosures will be effective for fiscal years beginning after December 15,
2010. The adoption of ASU No. 2010-06 did not impact our Consolidated Financial Statements.
In February 2010, the FASB issued ASU No. 2010-09,
Subsequent Events (Topic 855): Amendments
to Certain Recognition and Disclosure Requirements.
ASU No. 2010-09 includes, among other things,
an exemption for SEC filers from the requirement to disclose the date through which subsequent
events have been evaluated. We adopted ASU No. 2010-09 during the first quarter of 2010 and will
no longer include the date through which subsequent events have been evaluated in our notes to
Consolidated Financial Statements.
NOTE 3 CONCENTRATION OF CREDIT RISK
As of June 30, 2010, approximately 38.9%, 21.5% and 14.1% of our properties, based on the
gross book value of real estate investments (including assets held for sale), were managed or
operated by Sunrise, Brookdale Senior Living (whose subsidiaries include Brookdale Living
Communities, Inc. (Brookdale) and Alterra Healthcare Corporation (Alterra)) and Kindred,
respectively. Seniors housing communities and skilled nursing facilities constituted approximately
73.9% and 12.6%, respectively, of our portfolio, based on the gross book value of real estate
investments (including assets held for sale), as of June 30, 2010, with the remaining properties
consisting of hospitals, MOBs and other healthcare assets. As of June 30, 2010, our properties
were located in 43 states and two Canadian provinces, with properties in two states each accounting
for 10% or more of total revenues during the six months then ended.
8
Approximately 25.2% and 26.8% of our total revenues and 37.0% and 38.8% of our total net
operating income (NOI, which is defined as total revenues, less interest and other income and
property-level operating expenses) (including amounts in discontinued operations) for the six
months ended June 30, 2010 and 2009, respectively, were derived from our four Kindred Master
Leases. Approximately 12.5% and 13.0% of our total revenues and 18.3% and 19.2% of our total NOI
(including amounts in discontinued operations) for the six months ended June 30, 2010 and 2009,
respectively, were derived from our lease agreements with Brookdale Senior Living. Each of the
Kindred Master Leases and our leases with Brookdale Senior Living is a triple-net lease pursuant to
which the tenant is required to pay all insurance, taxes, utilities and maintenance and repairs
related to the properties. In addition, the tenants are required to comply with the terms of the
mortgage financing documents, if any, affecting the properties.
In view of the fact that Kindred and Brookdale Senior Living lease a substantial portion of
our triple-net leased properties and are each a significant source of our revenues and operating
income, their financial condition and ability and willingness to satisfy their obligations under
their respective leases and other agreements with us, as well as their willingness to renew those
leases upon expiration of the terms thereof, have a considerable impact on our results of
operations and our ability to service our indebtedness and to make distributions to our
stockholders. We cannot assure you that Kindred or Brookdale Senior Living will have sufficient
assets, income and access to financing to enable it to satisfy its obligations under its respective
leases and other agreements with us, and any inability or unwillingness on its part to do so would
have a material adverse effect on our business, financial condition, results of operations and
liquidity, our ability to service our indebtedness and our ability to make distributions to our
stockholders, as required for us to continue to qualify as a REIT (a Material Adverse Effect). We
also cannot assure you that Kindred or Brookdale Senior Living will elect to renew its respective
leases with us upon expiration of the initial base terms or any renewal terms thereof.
We are party to long-term management agreements with Sunrise pursuant to which Sunrise
currently provides comprehensive accounting and property management services with respect to 79 of
our seniors housing communities. Each management agreement has a term of 30 years from its
effective date, the earliest of which began in 2004. Approximately 44.7% and 44.2% of our total
revenues and 22.1% and 20.3% of our total earnings before interest, taxes, depreciation and
amortization (including non-cash stock-based compensation), excluding merger-related expenses and
deal costs and gains and losses on real estate disposals (Adjusted EBITDA) (including amounts in
discontinued operations) for the six months ended June 30, 2010 and 2009, respectively, were
attributable to senior living operations managed by Sunrise.
Unlike Kindred and Brookdale Senior Living, Sunrise does not lease properties from us, but
rather acts as a property manager for all of our senior living operations. Therefore, while we are
not directly exposed to credit risk with Sunrise, Sunrises inability to efficiently and
effectively manage our properties and to provide timely and accurate accounting information with
respect thereto could have a Material Adverse Effect on us. Although we have various rights as
owner under the Sunrise management agreements, we rely on Sunrises personnel, good faith,
expertise, historical performance, technical resources and information systems, proprietary
information and judgment to manage our seniors housing communities efficiently and effectively. We
also rely on Sunrise to set resident fees and otherwise operate those properties pursuant to our
management agreements. Any adverse developments in Sunrises business and affairs or financial
condition, including without limitation, the acceleration of its indebtedness, the inability to
renew or extend its revolving credit facility, the enforcement of default remedies by its
counterparties, or the commencement of insolvency proceedings under the U.S. Bankruptcy Code by or
against Sunrise could have a Material Adverse Effect on us.
Each of Kindred, Brookdale Senior Living and Sunrise is subject to the reporting requirements
of the SEC and is required to file with the SEC annual reports containing audited financial
information and quarterly reports containing unaudited financial information. The information
related to Kindred, Brookdale Senior Living and Sunrise contained or referred to in this Quarterly
Report on Form 10-Q is derived from filings made by Kindred, Brookdale Senior Living or Sunrise, as
the case may be, with the SEC or other publicly available information, or has been provided to us
by Kindred, Brookdale Senior Living or Sunrise. We have not verified this information either
through an independent investigation or by reviewing Kindreds, Brookdale Senior Livings or
Sunrises public filings. We have no reason to believe that this information is inaccurate in any
material respect, but we cannot assure you that all of this information is accurate. Kindreds,
Brookdale Senior Livings and Sunrises filings with the SEC can be found at the SECs website at
www.sec.gov. We are providing this data for informational purposes only, and you are encouraged to
obtain Kindreds, Brookdale Senior Livings and Sunrises publicly available filings from the SEC.
NOTE 4 DISPOSITIONS
We present separately, as discontinued operations, in all periods presented the results of
operations for all long-lived assets disposed of or held for sale.
9
2010 Dispositions and Assets Held for Sale
In June 2010, we sold four seniors housing communities for approximately $22.5 million,
including a lease termination fee of $0.2 million. We recognized a gain from the sale of these
assets of $4.9 million during the second quarter of 2010. The operations for these assets have
been reported as discontinued operations for the three and six months ended June 30, 2010 and 2009.
During the first quarter of 2010, we classified the operations of one seniors housing
community as held for sale. The net book value of this asset, $2.5 million, is reflected as held
for sale as of June 30, 2010 and is included in other assets on our Consolidated Balance Sheets.
The operations for this asset have been reported as discontinued operations for the three and six
months ended June 30, 2010 and 2009. We expect to complete the sale of this asset and record a
gain from the sale of approximately $0.1 million during the third quarter of 2010.
In February 2010, we sold one seniors housing community for approximately $2.5 million. We
recognized a gain from the sale of this asset of $0.1 million during the first quarter of 2010.
The operations for this asset have been reported as discontinued operations for all periods
presented.
2009 Dispositions
In June 2009, we sold six skilled nursing facilities to Kindred for total consideration of
$58.0 million, consisting of a $55.7 million aggregate sale price and a $2.3 million lease
termination fee. The proceeds from the sale were held in an Internal Revenue Code Section 1031
exchange escrow account with a qualified intermediary and used for our acquisition of three MOBs in
December 2009. Cash rent for these assets for the May 1, 2008 to April 30, 2009 lease year was
approximately $5.6 million. We recognized a net gain from the sale of these assets of $38.9
million in the second quarter of 2009.
During 2009, we also sold five seniors housing communities, one hospital, one MOB and one
other property to the existing tenants for an aggregate sale price of $96.2 million and transferred
related debt of $38.8 million. We recognized a net gain from the sales of these assets of $27.5
million in 2009.
Set forth below is a summary of the results of operations for the three- and six-month periods
ended June 30, 2010 and 2009 with respect to the properties sold or held for sale during the six
months ended June 30, 2010 and the year ended December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
405
|
|
|
$
|
1,972
|
|
|
$
|
901
|
|
|
$
|
4,432
|
|
Interest and other income
|
|
|
225
|
|
|
|
2,300
|
|
|
|
225
|
|
|
|
2,423
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
630
|
|
|
|
4,272
|
|
|
|
1,126
|
|
|
|
6,855
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
127
|
|
|
|
652
|
|
|
|
286
|
|
|
|
1,531
|
|
Depreciation and amortization
|
|
|
|
|
|
|
266
|
|
|
|
61
|
|
|
|
676
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
127
|
|
|
|
918
|
|
|
|
347
|
|
|
|
2,207
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before gain on sale of real estate assets
|
|
|
503
|
|
|
|
3,354
|
|
|
|
779
|
|
|
|
4,648
|
|
Gain on sale of real estate assets
|
|
|
5,041
|
|
|
|
39,020
|
|
|
|
5,225
|
|
|
|
66,891
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations
|
|
$
|
5,544
|
|
|
$
|
42,374
|
|
|
$
|
6,004
|
|
|
$
|
71,539
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
NOTE 5 INTANGIBLES
The following is a summary of our intangibles as of June 30, 2010 and December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
Intangible Assets:
|
|
|
|
|
|
|
|
|
Above market resident leases
|
|
$
|
9,370
|
|
|
$
|
10,525
|
|
In-place resident leases
|
|
|
96,097
|
|
|
|
96,274
|
|
Other intangibles
|
|
|
3,326
|
|
|
|
2,522
|
|
Accumulated amortization
|
|
|
(93,582
|
)
|
|
|
(92,636
|
)
|
|
|
|
|
|
|
|
Net Intangible Assets
|
|
$
|
15,211
|
|
|
$
|
16,685
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining weighted average amortization
period of lease-related intangibles in years
|
|
|
7.5
|
|
|
|
8.0
|
|
|
|
|
|
|
|
|
|
|
Intangible Liabilities:
|
|
|
|
|
|
|
|
|
Below market resident leases
|
|
$
|
15,166
|
|
|
$
|
15,143
|
|
Accumulated amortization
|
|
|
(11,134
|
)
|
|
|
(10,760
|
)
|
|
|
|
|
|
|
|
Net Intangible Liabilities
|
|
$
|
4,032
|
|
|
$
|
4,383
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remaining weighted average amortization
period of lease-related intangibles in years
|
|
|
8.1
|
|
|
|
8.3
|
|
NOTE 6 SENIOR NOTES PAYABLE AND OTHER DEBT
The following is a summary of our senior notes payable and other debt as of June 30, 2010 and
December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
Unsecured revolving credit facilities
|
|
$
|
126,269
|
|
|
$
|
8,466
|
|
6
3
/
4
% Senior Notes due 2010
|
|
|
|
|
|
|
1,375
|
|
3
7
/
8
% Convertible Senior Notes due 2011
|
|
|
230,000
|
|
|
|
230,000
|
|
9% Senior Notes due 2012
|
|
|
82,433
|
|
|
|
82,433
|
|
6
5
/
8
% Senior Notes due 2014
|
|
|
71,654
|
|
|
|
71,654
|
|
7
1
/
8
% Senior Notes due 2015
|
|
|
|
|
|
|
142,669
|
|
6
1
/
2
% Senior Notes due 2016
|
|
|
400,000
|
|
|
|
400,000
|
|
6
3
/
4
% Senior Notes due 2017
|
|
|
225,000
|
|
|
|
225,000
|
|
Mortgage loans and other
|
|
|
1,474,287
|
|
|
|
1,540,064
|
|
|
|
|
|
|
|
|
Total
|
|
|
2,609,643
|
|
|
|
2,701,661
|
|
Unamortized fair value adjustment
|
|
|
10,214
|
|
|
|
11,642
|
|
Unamortized commission fees and discounts
|
|
|
(39,008
|
)
|
|
|
(43,202
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes payable and other debt
|
|
$
|
2,580,849
|
|
|
$
|
2,670,101
|
|
|
|
|
|
|
|
|
11
As of June 30, 2010, our indebtedness had the following maturities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unsecured
|
|
|
|
|
|
|
|
|
|
Principal Amount
|
|
|
Revolving Credit
|
|
|
Scheduled Periodic
|
|
|
|
|
|
|
Due at Maturity
|
|
|
Facilities (1)
|
|
|
Amortization
|
|
|
Total Maturities
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
2010
|
|
$
|
122,246
|
|
|
$
|
|
|
|
$
|
13,749
|
|
|
$
|
135,995
|
|
2011
|
|
|
301,823
|
|
|
|
|
|
|
|
26,354
|
|
|
|
328,177
|
|
2012
|
|
|
388,937
|
|
|
|
126,269
|
|
|
|
22,798
|
|
|
|
538,004
|
|
2013
|
|
|
150,962
|
|
|
|
|
|
|
|
17,265
|
|
|
|
168,227
|
|
2014
|
|
|
109,137
|
|
|
|
|
|
|
|
15,054
|
|
|
|
124,191
|
|
Thereafter
|
|
|
1,255,599
|
|
|
|
|
|
|
|
59,450
|
|
|
|
1,315,049
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total maturities
|
|
$
|
2,328,704
|
|
|
$
|
126,269
|
|
|
$
|
154,670
|
|
|
$
|
2,609,643
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
At June 30, 2010, we had $27.8 million of unrestricted cash and cash equivalents, for a
net amount outstanding on our unsecured revolving credit facilities of $98.5 million.
|
As
of June 30, 2010, our joint venture partners share of
total debt was $147.7 million with respect to 56 of our properties owned through joint ventures.
Unsecured Revolving Credit Facilities
As of June 30, 2010, our aggregate borrowing capacity under the unsecured revolving credit
facilities was $1.0 billion, all of which matures on April 26, 2012. Borrowings under our
unsecured revolving credit facilities bear interest at a fluctuating rate per annum (based on U.S.
or Canadian LIBOR, the Canadian Bankers Acceptance rate, or the U.S. or Canadian Prime rate), plus
an applicable percentage based on our consolidated leverage. At June 30, 2010, the applicable
percentage was 2.80%. Our unsecured revolving credit facilities have a 20 basis point facility fee.
At June 30, 2010, we had $126.3 million outstanding under our unsecured revolving credit
facilities and approximately $872.7 million of availability.
Senior Notes
On June 1, 2010, we repaid in full, at par, $1.4 million principal amount outstanding of our
senior notes due 2010 upon maturity. In June 2010, we also exercised our option to redeem all
$142.7 million principal amount outstanding of our 7
1
/
8
% senior notes due 2015, at a redemption price
equal to 103.56% of par, plus accrued and unpaid interest to the redemption date, pursuant to the
call option contained in the indenture governing the notes. As a result, we paid a total of $147.8
million, plus accrued and unpaid interest, and recognized a net loss on extinguishment of debt of
$6.4 million during the second quarter.
Mortgages
In June 2010, we repaid $49.8 million of mortgage loans on two of our Sunrise-managed
properties in which we had 80% ownership interests. In connection with our payment of Sunrises share ($9.9 million) of those mortgage
loans, we acquired Sunrises 20% noncontrolling interests in the properties.
12
NOTE 7 FAIR VALUES OF FINANCIAL INSTRUMENTS
As of June 30, 2010 and December 31, 2009, the carrying amounts and fair values of our
financial instruments were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
Carrying
|
|
|
|
|
|
|
Carrying
|
|
|
|
|
|
|
Amount
|
|
|
Fair Value
|
|
|
Amount
|
|
|
Fair Value
|
|
|
|
(In thousands)
|
|
Cash and cash equivalents
|
|
$
|
27,794
|
|
|
$
|
27,794
|
|
|
$
|
107,397
|
|
|
$
|
107,397
|
|
Loans receivable, net
|
|
|
140,870
|
|
|
|
142,025
|
|
|
|
131,887
|
|
|
|
129,512
|
|
Marketable debt securities
|
|
|
64,800
|
|
|
|
64,800
|
|
|
|
65,038
|
|
|
|
65,038
|
|
Senior notes payable and other debt, gross
|
|
|
(2,609,643
|
)
|
|
|
(2,591,820
|
)
|
|
|
(2,701,661
|
)
|
|
|
(2,780,405
|
)
|
Fair value estimates are subjective in nature and depend on a number of important assumptions,
including estimates of future cash flows, risks, discount rates and relevant comparable market
information associated with each financial instrument. The use of different market assumptions and
estimation methodologies may have a material effect on the reported estimated fair value amounts.
Accordingly, the estimates presented above are not necessarily indicative of the amounts we would
realize in a current market exchange.
At June 30, 2010, we held marketable debt securities, classified as available-for-sale, with
an aggregate amortized cost basis and fair value of $61.2 million and $64.8 million, respectively.
At December 31, 2009, these securities had an aggregate amortized cost basis and fair value of
$60.6 million and $65.0 million, respectively. The contractual maturities of our marketable debt
securities range from October 1, 2012 to April 15, 2016. We do not intend to sell these securities
and it is more likely than not that we will not be required to sell these securities prior to
maturity.
NOTE 8 LITIGATION
Legal Proceedings Defended and Indemnified by Third Parties
Kindred, Brookdale Senior Living, Sunrise and our other tenants, operators and managers are
parties to certain legal actions and regulatory investigations arising in the normal course of
their business. In certain cases, the tenant, operator or manager, as applicable, has agreed to
indemnify, defend and hold us harmless against these actions and investigations. However, the
resolution of any litigation or investigations, either individually or in the aggregate, could have
a material adverse effect on Kindreds, Brookdale Senior Livings, Sunrises or such other
tenants, operators and managers liquidity, financial condition or results of operations, which,
in turn, could have a Material Adverse Effect on us.
Litigation Related to the Sunrise REIT Acquisition
On May 3, 2007, we filed a lawsuit against HCP, Inc. (HCP) in the United States District
Court for the Western District of Kentucky, entitled Ventas, Inc. v. HCP, Inc., Case
No. 07-cv-238-JGH. We asserted claims of tortious interference with contract and tortious
interference with prospective business advantage. Our complaint alleged that HCP interfered with
our purchase agreement to acquire the assets and liabilities of Sunrise Senior Living Real Estate
Investment Trust (Sunrise REIT) and with the process for unitholder consideration of the purchase
agreement. The complaint alleged, among other things, that HCP made certain improper and
misleading public statements and/or offers to acquire Sunrise REIT and that HCPs actions caused us
to suffer substantial damages, including, among other things, the payment of materially greater
consideration to acquire Sunrise REIT resulting from the substantial increase in the purchase price
above the original contract price necessary to obtain unitholder approval and increased costs
associated with the delay in closing the acquisition, including increased costs to finance the
transaction as a result of the delay.
HCP brought counterclaims against us alleging misrepresentation and negligent
misrepresentation by Sunrise REIT related to its sale process, claiming that we were responsible
for those actions as successor. HCP sought compensatory and punitive damages. On March 25, 2009,
the District Court granted us judgment on the pleadings against all counterclaims brought by HCP
and dismissed HCPs counterclaims with prejudice. Thereafter, the District Court confirmed the
dismissal of HCPs counterclaims.
13
On July 16, 2009, the District Court denied HCPs summary judgment motion as to our claim for
tortious interference with business advantage, permitting us to present that claim against HCP at
trial. The District Court granted HCPs motion for summary judgment as to our claim for tortious
interference with contract and dismissed that claim. The District Court also ruled that we could
not seek to recover a portion of our alleged damages.
On September 4, 2009, the jury unanimously held that HCP tortiously interfered with our
business expectation to acquire Sunrise REIT at the agreed price by employing significantly
wrongful means such as fraudulent misrepresentation, deceit and coercion. The jury awarded us
$101.6 million in compensatory damages, which is the full amount of damages the District Court
permitted us to seek at trial. The District Court entered judgment on the jurys verdict on
September 8, 2009.
On November 16, 2009, the District Court affirmed the jurys verdict and denied all of HCPs
post-trial motions, including a motion requesting that the District Court overturn the jurys
verdict and enter judgment for HCP or, in the alternative, award HCP a new trial. The District
Court also denied our motion for pre-judgment interest and/or to modify the jury award to increase
it to reflect the currency rates in effect on September 8, 2009, the date of entry of the judgment.
On November 17, 2009, HCP appealed the District Courts judgment to the United States Court of
Appeals for the Sixth Circuit (the Sixth Circuit). HCP argues that the judgment against it
should be vacated and the case remanded for a new trial and/or that judgment should be entered in
its favor as a matter of law. We are vigorously contesting HCPs appeal and seek confirmation by
the Sixth Circuit of both the jurys verdict and the various rulings in our favor in the District
Court.
On November 24, 2009, we filed a cross-appeal to the Sixth Circuit, which will be heard and
decided in conjunction with HCPs appeal. In addition to maintaining the full benefit of our
favorable jury verdict, in our cross-appeal, we have asserted that we are entitled to substantial
monetary relief in addition to the jury verdict, including punitive damages, additional
compensatory damages and pre-judgment interest. We are vigorously pursuing our cross-appeal and
seek additional proceedings in the District Court in which a jury may supplement the current
judgment.
On December 11, 2009, HCP posted a $102.8 million letter of credit in our favor to serve as
security to stay execution of the jury verdict pending the appellate proceedings.
The briefing process for HCPs appeal and our cross-appeal is complete, and a final decision
by the Sixth Circuit could be issued by June 2011. There can be no assurance as to the outcome of
HCPs appeal or our cross-appeal or the timing of a decision by the Sixth Circuit.
Other Litigation
We are party to various other lawsuits, investigations and claims (some of which may not be
insured) arising in the normal course of our business, including without limitation in connection
with the operations of our seniors housing communities managed by Sunrise. It is the opinion of
management that, except as set forth in this Note 8, the disposition of these actions,
investigations and claims will not, individually or in the aggregate, have a Material Adverse
Effect on us. However, we are unable to predict the ultimate outcome of pending litigation,
investigations and claims, and if managements assessment of our liability with respect to these
actions, investigations and claims is incorrect, such actions, investigations and claims could have
a Material Adverse Effect on us.
NOTE 9 INCOME TAXES
We have elected for certain of our subsidiaries to be treated as taxable REIT subsidiaries
(TRS or TRS entities), which are subject to federal and state income taxes. Although the TRS
entities were not liable for any cash federal income taxes for the three or six months ended June
30, 2010, federal income tax liabilities for these TRS entities may increase in future periods as
we exhaust net operating loss carryforwards and as our senior living operations segment grows. Such
increases could be significant.
The consolidated provision for income taxes for the three months ended June 30, 2010 and 2009
was an expense of $0.4 million and a benefit of $0.4 million, respectively. These amounts were
adjusted by income tax expense of $0.6 million and $0.5 million, respectively, related to the
noncontrolling interest share of net income. The consolidated provision for income taxes for the
six months ended June 30, 2010 and 2009 was an expense of $0.7 million and a benefit of $0.9
million, respectively. These amounts were adjusted by income tax expense of $1.0 million and $0.9
million, respectively, related to the noncontrolling interest share of net income. Realization of a
deferred tax benefit is dependent in part upon generating sufficient taxable income in future
periods. Our net operating loss carryforwards begin to expire in 2024 with respect to the TRS
entities and 2020 with respect to our other entities.
14
Each TRS is a tax paying component for purposes of classifying deferred tax assets and
liabilities. Net deferred tax liabilities related to TRS entities totaled $251.8 million and $253.7
million at June 30, 2010 and December 31, 2009, respectively, and related primarily to book and tax
basis differences for fixed and intangible assets and to net operating losses.
Generally, we are subject to audit under the statute of limitations by the Internal Revenue
Service for the year ended December 31, 2006 and subsequent years and are subject to audit by state
taxing authorities for the year ended December 31, 2005 and
subsequent years. We are also subject to audit by the Canada Revenue Agency for periods subsequent to 2003 related to entities acquired or formed in connection with our Sunrise REIT acquisition.
NOTE 10 STOCKHOLDERS EQUITY
In March 2010, in connection with our outstanding 3
7
/
8
% convertible senior notes due 2011,
issued in 2006, we filed a registration statement on Form S-3 with the SEC relating to the resale,
from time to time, by the selling stockholders of shares of our common stock, if any, that may
become issuable upon conversion of the convertible notes. The registration statement replaced our
previous resale shelf registration statement, which expired pursuant to the SECs rules.
Accumulated Other Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation
|
|
$
|
13,909
|
|
|
$
|
16,059
|
|
Unrealized gain on marketable debt securities
|
|
|
3,571
|
|
|
|
4,440
|
|
Other
|
|
|
(974
|
)
|
|
|
(830
|
)
|
|
|
|
|
|
|
|
|
|
Total accumulated other comprehensive income
|
|
$
|
16,506
|
|
|
$
|
19,669
|
|
|
|
|
|
|
|
|
15
NOTE 11 EARNINGS PER COMMON SHARE
The following table shows the amounts used in computing basic and diluted earnings per common
share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands, except per share amounts)
|
|
Numerator for basic and diluted earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common stockholders
|
|
$
|
52,523
|
|
|
$
|
46,007
|
|
|
$
|
104,682
|
|
|
$
|
91,070
|
|
Discontinued operations
|
|
|
5,544
|
|
|
|
42,374
|
|
|
|
6,004
|
|
|
|
71,539
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
58,067
|
|
|
$
|
88,381
|
|
|
$
|
110,686
|
|
|
$
|
162,609
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator for basic earnings per
share weighted average shares
|
|
|
156,611
|
|
|
|
154,441
|
|
|
|
156,533
|
|
|
|
148,798
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options
|
|
|
357
|
|
|
|
63
|
|
|
|
337
|
|
|
|
55
|
|
Restricted stock awards
|
|
|
48
|
|
|
|
6
|
|
|
|
45
|
|
|
|
6
|
|
Convertible notes
|
|
|
425
|
|
|
|
|
|
|
|
291
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator for diluted earnings per
share adjusted weighted average shares
|
|
|
157,441
|
|
|
|
154,510
|
|
|
|
157,206
|
|
|
|
148,859
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common stockholders
|
|
$
|
0.33
|
|
|
$
|
0.30
|
|
|
$
|
0.67
|
|
|
$
|
0.61
|
|
Discontinued operations
|
|
|
0.04
|
|
|
|
0.27
|
|
|
|
0.04
|
|
|
|
0.48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
0.37
|
|
|
$
|
0.57
|
|
|
$
|
0.71
|
|
|
$
|
1.09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common stockholders
|
|
$
|
0.33
|
|
|
$
|
0.30
|
|
|
$
|
0.66
|
|
|
$
|
0.61
|
|
Discontinued operations
|
|
|
0.04
|
|
|
|
0.27
|
|
|
|
0.04
|
|
|
|
0.48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
0.37
|
|
|
$
|
0.57
|
|
|
$
|
0.70
|
|
|
$
|
1.09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTE 12 SEGMENT INFORMATION
As of June 30, 2010, we operated through two reportable business segments: triple-net leased
properties and senior living operations. Our triple-net leased properties segment consists of
acquiring and owning seniors housing and healthcare properties in the United States and
leasing those properties to healthcare operating companies under triple-net or absolute-net
leases, which require the tenants to pay all property-related expenses. Our senior living
operations segment primarily consists of investments in seniors housing communities located in the
United States and Canada for which we engage independent third parties, such as Sunrise, to manage
the operations.
As of June 30, 2010, our MOB segment consists of leasing space primarily to physicians and
other healthcare businesses and engaging third parties to manage those operations. Due to our
limited operation of and allocation of capital to the MOBs, the MOB segment is not individually
reported and is included in All Other because it did not meet necessary quantitative and
qualitative thresholds at June 30, 2010.
We evaluate performance of the combined properties in each segment based on NOI. There are no
intersegment sales or transfers.
All other revenues consist primarily of rental income related to the MOBs, income from loans
and investments and other miscellaneous income.
16
Summary information by business segment is as follows:
For the three months ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net
|
|
|
Senior
|
|
|
|
|
|
|
|
|
|
Leased
|
|
|
Living
|
|
|
All
|
|
|
|
|
|
|
Properties
|
|
|
Operations
|
|
|
Other
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
118,044
|
|
|
$
|
|
|
|
$
|
12,240
|
|
|
$
|
130,284
|
|
Resident fees and services
|
|
|
|
|
|
|
109,867
|
|
|
|
|
|
|
|
109,867
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
3,705
|
|
|
|
3,705
|
|
Interest and other income
|
|
|
93
|
|
|
|
7
|
|
|
|
22
|
|
|
|
122
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
118,137
|
|
|
$
|
109,874
|
|
|
$
|
15,967
|
|
|
$
|
243,978
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment net operating income
|
|
$
|
118,044
|
|
|
$
|
38,808
|
|
|
$
|
11,821
|
|
|
$
|
168,673
|
|
Interest and other income
|
|
|
93
|
|
|
|
7
|
|
|
|
22
|
|
|
|
122
|
|
Interest expense
|
|
|
(21,441
|
)
|
|
|
(21,422
|
)
|
|
|
(1,182
|
)
|
|
|
(44,045
|
)
|
Depreciation and amortization
|
|
|
(27,335
|
)
|
|
|
(18,122
|
)
|
|
|
(4,728
|
)
|
|
|
(50,185
|
)
|
General, administrative and professional fees
|
|
|
|
|
|
|
|
|
|
|
(9,858
|
)
|
|
|
(9,858
|
)
|
Foreign currency loss
|
|
|
|
|
|
|
(121
|
)
|
|
|
|
|
|
|
(121
|
)
|
Loss on extinguishment of debt
|
|
|
(6,447
|
)
|
|
|
(102
|
)
|
|
|
|
|
|
|
(6,549
|
)
|
Merger-related expenses and deal costs
|
|
|
|
|
|
|
(535
|
)
|
|
|
(3,672
|
)
|
|
|
(4,207
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes,
discontinued operations
and noncontrolling interest
|
|
$
|
62,914
|
|
|
$
|
(1,487
|
)
|
|
$
|
(7,597
|
)
|
|
$
|
53,830
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended June 30, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net
|
|
|
Senior
|
|
|
|
|
|
|
|
|
|
Leased
|
|
|
Living
|
|
|
All
|
|
|
|
|
|
|
Properties
|
|
|
Operations
|
|
|
Other
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
116,269
|
|
|
$
|
|
|
|
$
|
8,343
|
|
|
$
|
124,612
|
|
Resident fees and services
|
|
|
|
|
|
|
103,399
|
|
|
|
|
|
|
|
103,399
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
|
|
3,333
|
|
Interest and other income
|
|
|
43
|
|
|
|
1
|
|
|
|
64
|
|
|
|
108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
116,312
|
|
|
$
|
103,400
|
|
|
$
|
11,740
|
|
|
$
|
231,452
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment net operating income
|
|
$
|
116,269
|
|
|
$
|
33,857
|
|
|
$
|
8,654
|
|
|
$
|
158,780
|
|
Interest and other income
|
|
|
43
|
|
|
|
1
|
|
|
|
64
|
|
|
|
108
|
|
Interest expense
|
|
|
(20,521
|
)
|
|
|
(22,579
|
)
|
|
|
(894
|
)
|
|
|
(43,994
|
)
|
Depreciation and amortization
|
|
|
(29,854
|
)
|
|
|
(15,813
|
)
|
|
|
(2,976
|
)
|
|
|
(48,643
|
)
|
General, administrative and professional fees
|
|
|
|
|
|
|
|
|
|
|
(10,355
|
)
|
|
|
(10,355
|
)
|
Foreign currency loss
|
|
|
|
|
|
|
(5
|
)
|
|
|
|
|
|
|
(5
|
)
|
Loss on extinguishment of debt
|
|
|
(5,975
|
)
|
|
|
|
|
|
|
|
|
|
|
(5,975
|
)
|
Merger-related expenses and deal costs
|
|
|
|
|
|
|
(3,498
|
)
|
|
|
(4
|
)
|
|
|
(3,502
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes,
discontinued operations
and noncontrolling interest
|
|
$
|
59,962
|
|
|
$
|
(8,037
|
)
|
|
$
|
(5,511
|
)
|
|
$
|
46,414
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17
For the six months ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net
|
|
|
Senior
|
|
|
|
|
|
|
|
|
|
Leased
|
|
|
Living
|
|
|
All
|
|
|
|
|
|
|
Properties
|
|
|
Operations
|
|
|
Other
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
235,034
|
|
|
$
|
|
|
|
$
|
24,429
|
|
|
$
|
259,463
|
|
Resident fees and services
|
|
|
|
|
|
|
218,353
|
|
|
|
|
|
|
|
218,353
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
7,322
|
|
|
|
7,322
|
|
Interest and other income
|
|
|
298
|
|
|
|
20
|
|
|
|
67
|
|
|
|
385
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
235,332
|
|
|
$
|
218,373
|
|
|
$
|
31,818
|
|
|
$
|
485,523
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment net operating income
|
|
$
|
235,034
|
|
|
$
|
72,617
|
|
|
$
|
23,425
|
|
|
$
|
331,076
|
|
Interest and other income
|
|
|
298
|
|
|
|
20
|
|
|
|
67
|
|
|
|
385
|
|
Interest expense
|
|
|
(43,271
|
)
|
|
|
(42,688
|
)
|
|
|
(2,386
|
)
|
|
|
(88,345
|
)
|
Depreciation and amortization
|
|
|
(56,902
|
)
|
|
|
(36,084
|
)
|
|
|
(9,675
|
)
|
|
|
(102,661
|
)
|
General, administrative and professional fees
|
|
|
|
|
|
|
|
|
|
|
(20,541
|
)
|
|
|
(20,541
|
)
|
Foreign currency loss
|
|
|
|
|
|
|
(15
|
)
|
|
|
|
|
|
|
(15
|
)
|
Loss on extinguishment of debt
|
|
|
(6,447
|
)
|
|
|
(102
|
)
|
|
|
|
|
|
|
(6,549
|
)
|
Merger-related expenses and deal costs
|
|
|
(38
|
)
|
|
|
(1,246
|
)
|
|
|
(5,242
|
)
|
|
|
(6,526
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes,
discontinued operations
and noncontrolling interest
|
|
$
|
128,674
|
|
|
$
|
(7,498
|
)
|
|
$
|
(14,352
|
)
|
|
$
|
106,824
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the six months ended June 30, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net
|
|
|
Senior
|
|
|
|
|
|
|
|
|
|
Leased
|
|
|
Living
|
|
|
All
|
|
|
|
|
|
|
Properties
|
|
|
Operations
|
|
|
Other
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
230,319
|
|
|
$
|
|
|
|
$
|
16,691
|
|
|
$
|
247,010
|
|
Resident fees and services
|
|
|
|
|
|
|
206,338
|
|
|
|
|
|
|
|
206,338
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
6,614
|
|
|
|
6,614
|
|
Interest and other income
|
|
|
158
|
|
|
|
10
|
|
|
|
226
|
|
|
|
394
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
230,477
|
|
|
$
|
206,348
|
|
|
$
|
23,531
|
|
|
$
|
460,356
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment net operating income
|
|
$
|
230,319
|
|
|
$
|
64,342
|
|
|
$
|
17,269
|
|
|
$
|
311,930
|
|
Interest and other income
|
|
|
158
|
|
|
|
10
|
|
|
|
226
|
|
|
|
394
|
|
Interest expense
|
|
|
(42,623
|
)
|
|
|
(45,352
|
)
|
|
|
(1,949
|
)
|
|
|
(89,924
|
)
|
Depreciation and amortization
|
|
|
(59,653
|
)
|
|
|
(32,938
|
)
|
|
|
(5,550
|
)
|
|
|
(98,141
|
)
|
General, administrative and professional fees
|
|
|
|
|
|
|
|
|
|
|
(20,953
|
)
|
|
|
(20,953
|
)
|
Foreign currency gain
|
|
|
|
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
Loss on extinguishment of debt
|
|
|
(6,012
|
)
|
|
|
|
|
|
|
(68
|
)
|
|
|
(6,080
|
)
|
Merger-related expenses and deal costs
|
|
|
(174
|
)
|
|
|
(5,355
|
)
|
|
|
(27
|
)
|
|
|
(5,556
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes,
discontinued operations
and noncontrolling interest
|
|
$
|
122,015
|
|
|
$
|
(19,292
|
)
|
|
$
|
(11,052
|
)
|
|
$
|
91,671
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
Capital expenditures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-net leased properties (1)
|
|
$
|
100
|
|
|
$
|
148
|
|
|
$
|
12,092
|
|
|
$
|
10,148
|
|
Senior living operations
|
|
|
1,494
|
|
|
|
1,457
|
|
|
|
2,893
|
|
|
|
2,599
|
|
All other (2)
|
|
|
12,244
|
|
|
|
9,524
|
|
|
|
15,008
|
|
|
|
19,934
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capital expenditures
|
|
$
|
13,838
|
|
|
$
|
11,129
|
|
|
$
|
29,993
|
|
|
$
|
32,681
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The six months ended June 30, 2009 includes $9.3 million from funds held in an
Internal Revenue Code Section 1031 exchange escrow account with a qualified intermediary.
|
|
(2)
|
|
The six months ended June 30, 2010 includes $11.1 million in earnest money deposits
related to the acquisition of businesses owned and operated by Lillibridge Healthcare
Services, Inc. and its related entities (collectively, Lillibridge). See Note
13Subsequent Event.
|
Our portfolio of properties and real estate investments are located in the United States and
Canada. Revenues are attributed to an individual country based on the location of each property.
Geographic information regarding our business segments is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
223,347
|
|
|
$
|
213,797
|
|
|
$
|
444,629
|
|
|
$
|
426,093
|
|
Canada
|
|
|
20,631
|
|
|
|
17,655
|
|
|
|
40,894
|
|
|
|
34,263
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
243,978
|
|
|
$
|
231,452
|
|
|
$
|
485,523
|
|
|
$
|
460,356
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
Net real estate property:
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
4,610,486
|
|
|
$
|
4,696,674
|
|
Canada
|
|
|
408,104
|
|
|
|
418,036
|
|
|
|
|
|
|
|
|
Total net real estate property
|
|
$
|
5,018,590
|
|
|
$
|
5,114,710
|
|
|
|
|
|
|
|
|
NOTE 13 SUBSEQUENT EVENT
On July 1, 2010, we completed the acquisition of businesses owned and operated by Lillibridge
and its real estate interests in 96 MOBs and ambulatory facilities for approximately $381
million, including the assumption of debt. Lillibridge is a fully-integrated healthcare real estate
company that owns, designs, develops and manages MOBs, and offers strategic, financial and
operational real estate advisory services, principally for highly rated, not-for-profit healthcare
systems nationally. Lillibridge manages for third parties 31 MOBs. As a result of the transaction, we acquired: a 100% interest in Lillibridges
property management, leasing, construction and development, advisory and asset management services
business; a 100% interest in 38 MOBs comprising 1.9 million square feet of space; a 20% joint
venture interest in 24 MOBs comprising 1.5 million square feet; and a 5% joint venture interest in
34 MOBs comprising 2.3 million square feet. We are the managing member of these joint ventures and
the property manager for the joint venture properties. An institutional third party holds the
majority interests in these joint
ventures, and we have a right of first offer on those interests. We funded the acquisition
with cash on hand (including $11.1 million in earnest money deposits made in June 2010), borrowings
under our revolving credit facilities and the assumption of mortgage
debt. In connection with the acquisition, approximately
$133 million of mortgage debt was paid off. Our portfolio now includes 153
owned or managed MOBs with 8.6 million square feet in 20 states, including the District of
Columbia.
19
NOTE 14 CONDENSED CONSOLIDATING INFORMATION
We and certain of our direct and indirect wholly owned subsidiaries (the Wholly Owned
Subsidiary Guarantors) have fully and unconditionally guaranteed, on a joint and several basis,
the obligation to pay principal and interest with respect to the senior notes of our subsidiaries,
Ventas Realty and Ventas Capital Corporation (the Issuers). Ventas Capital Corporation is a
wholly owned direct subsidiary of Ventas Realty that was formed to facilitate the offering of the
senior notes and has no assets or operations. In addition, Ventas Realty and the Wholly Owned
Subsidiary Guarantors have fully and unconditionally guaranteed, on a joint and several basis, the
obligation to pay principal and interest with respect to our convertible notes. We have other
subsidiaries (Non-Guarantor Subsidiaries) that are not included among the Wholly Owned Subsidiary
Guarantors, and such subsidiaries are not obligated with respect to the senior notes or the
convertible notes. Contractual and legal restrictions, including those contained in the instruments
governing certain Non-Guarantor Subsidiaries outstanding indebtedness, may under certain
circumstances restrict our ability to obtain cash from our Non-Guarantor Subsidiaries for the
purpose of meeting our debt service obligations, including our guarantee of payment of principal
and interest on the senior notes and our primary obligation to pay principal and interest on the
convertible notes. Certain of our real estate assets are also subject to mortgages. The following
summarizes our condensed consolidating information as of June 30, 2010 and December 31, 2009 and
for the three and six months ended June 30, 2010 and 2009:
CONDENSED CONSOLIDATING BALANCE SHEET
As of June 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net real estate investments
|
|
$
|
1,260
|
|
|
$
|
2,268,480
|
|
|
$
|
736,612
|
|
|
$
|
2,153,108
|
|
|
$
|
|
|
|
$
|
5,159,460
|
|
Cash and cash equivalents
|
|
|
2,557
|
|
|
|
6,101
|
|
|
|
|
|
|
|
19,136
|
|
|
|
|
|
|
|
27,794
|
|
Escrow deposits and restricted
cash
|
|
|
84
|
|
|
|
9,945
|
|
|
|
10,107
|
|
|
|
23,348
|
|
|
|
|
|
|
|
43,484
|
|
Deferred financing costs, net
|
|
|
3,003
|
|
|
|
1,234
|
|
|
|
10,958
|
|
|
|
9,696
|
|
|
|
|
|
|
|
24,891
|
|
Investment in and advances
to affiliates
|
|
|
1,116,730
|
|
|
|
|
|
|
|
1,028,721
|
|
|
|
|
|
|
|
(2,145,451
|
)
|
|
|
|
|
Other
|
|
|
83,405
|
|
|
|
79,623
|
|
|
|
9,341
|
|
|
|
34,119
|
|
|
|
|
|
|
|
206,488
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
1,207,039
|
|
|
$
|
2,365,383
|
|
|
$
|
1,795,739
|
|
|
$
|
2,239,407
|
|
|
$
|
(2,145,451
|
)
|
|
$
|
5,462,117
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes payable and other
debt
|
|
$
|
223,257
|
|
|
$
|
405,763
|
|
|
$
|
818,822
|
|
|
$
|
1,133,007
|
|
|
$
|
|
|
|
$
|
2,580,849
|
|
Intercompany loans
|
|
|
(50,691
|
)
|
|
|
450,791
|
|
|
|
(400,100
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued interest
|
|
|
(105
|
)
|
|
|
1,600
|
|
|
|
9,862
|
|
|
|
5,325
|
|
|
|
|
|
|
|
16,682
|
|
Accounts payable and other
liabilities
|
|
|
30,617
|
|
|
|
79,078
|
|
|
|
24,321
|
|
|
|
47,327
|
|
|
|
|
|
|
|
181,343
|
|
Deferred income taxes
|
|
|
251,829
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
251,829
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
454,907
|
|
|
|
937,232
|
|
|
|
452,905
|
|
|
|
1,185,659
|
|
|
|
|
|
|
|
3,030,703
|
|
Total equity
|
|
|
752,132
|
|
|
|
1,428,151
|
|
|
|
1,342,834
|
|
|
|
1,053,748
|
|
|
|
(2,145,451
|
)
|
|
|
2,431,414
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and equity
|
|
$
|
1,207,039
|
|
|
$
|
2,365,383
|
|
|
$
|
1,795,739
|
|
|
$
|
2,239,407
|
|
|
$
|
(2,145,451
|
)
|
|
$
|
5,462,117
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20
CONDENSED CONSOLIDATING BALANCE SHEET
As of December 31, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net real estate investments
|
|
$
|
9,496
|
|
|
$
|
2,268,865
|
|
|
$
|
769,857
|
|
|
$
|
2,198,379
|
|
|
$
|
|
|
|
$
|
5,246,597
|
|
Cash and cash equivalents
|
|
|
|
|
|
|
4,249
|
|
|
|
82,886
|
|
|
|
20,262
|
|
|
|
|
|
|
|
107,397
|
|
Escrow deposits and restricted
cash
|
|
|
215
|
|
|
|
9,184
|
|
|
|
12,766
|
|
|
|
17,667
|
|
|
|
|
|
|
|
39,832
|
|
Deferred financing costs, net
|
|
|
1,192
|
|
|
|
1,610
|
|
|
|
15,577
|
|
|
|
10,873
|
|
|
|
|
|
|
|
29,252
|
|
Investment in and advances
to affiliates
|
|
|
1,169,609
|
|
|
|
|
|
|
|
1,308,403
|
|
|
|
|
|
|
|
(2,478,012
|
)
|
|
|
|
|
Other
|
|
|
3
|
|
|
|
76,400
|
|
|
|
82,346
|
|
|
|
34,418
|
|
|
|
|
|
|
|
193,167
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
1,180,515
|
|
|
$
|
2,360,308
|
|
|
$
|
2,271,835
|
|
|
$
|
2,281,599
|
|
|
$
|
(2,478,012
|
)
|
|
$
|
5,616,245
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes payable and other
debt
|
|
$
|
220,942
|
|
|
$
|
422,182
|
|
|
$
|
876,987
|
|
|
$
|
1,149,990
|
|
|
$
|
|
|
|
$
|
2,670,101
|
|
Intercompany loans
|
|
|
(45,563
|
)
|
|
|
453,784
|
|
|
|
(408,200
|
)
|
|
|
(21
|
)
|
|
|
|
|
|
|
|
|
Accrued interest
|
|
|
(3,552
|
)
|
|
|
5,125
|
|
|
|
10,732
|
|
|
|
5,669
|
|
|
|
|
|
|
|
17,974
|
|
Accounts payable and other
liabilities
|
|
|
15,696
|
|
|
|
69,254
|
|
|
|
42,580
|
|
|
|
62,915
|
|
|
|
|
|
|
|
190,445
|
|
Deferred income taxes
|
|
|
253,665
|
|
|
|
61
|
|
|
|
|
|
|
|
(61
|
)
|
|
|
|
|
|
|
253,665
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
441,188
|
|
|
|
950,406
|
|
|
|
522,099
|
|
|
|
1,218,492
|
|
|
|
|
|
|
|
3,132,185
|
|
Total equity
|
|
|
739,327
|
|
|
|
1,409,902
|
|
|
|
1,749,736
|
|
|
|
1,063,107
|
|
|
|
(2,478,012
|
)
|
|
|
2,484,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and equity
|
|
$
|
1,180,515
|
|
|
$
|
2,360,308
|
|
|
$
|
2,271,835
|
|
|
$
|
2,281,599
|
|
|
$
|
(2,478,012
|
)
|
|
$
|
5,616,245
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21
CONDENSED CONSOLIDATING STATEMENT OF INCOME
For the Three Months Ended June 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
602
|
|
|
$
|
42,017
|
|
|
$
|
69,640
|
|
|
$
|
18,025
|
|
|
$
|
|
|
|
$
|
130,284
|
|
Resident fees and services
|
|
|
|
|
|
|
33,564
|
|
|
|
|
|
|
|
76,303
|
|
|
|
|
|
|
|
109,867
|
|
Income from loans and investments
|
|
|
1,411
|
|
|
|
468
|
|
|
|
1,826
|
|
|
|
|
|
|
|
|
|
|
|
3,705
|
|
Equity earnings in affiliates
|
|
|
61,610
|
|
|
|
437
|
|
|
|
|
|
|
|
|
|
|
|
(62,047
|
)
|
|
|
|
|
Interest and other income
|
|
|
85
|
|
|
|
8
|
|
|
|
21
|
|
|
|
8
|
|
|
|
|
|
|
|
122
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
63,708
|
|
|
|
76,494
|
|
|
|
71,487
|
|
|
|
94,336
|
|
|
|
(62,047
|
)
|
|
|
243,978
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
1,387
|
|
|
|
5,970
|
|
|
|
20,018
|
|
|
|
16,670
|
|
|
|
|
|
|
|
44,045
|
|
Depreciation and amortization
|
|
|
417
|
|
|
|
21,280
|
|
|
|
9,424
|
|
|
|
19,064
|
|
|
|
|
|
|
|
50,185
|
|
Property-level operating expenses
|
|
|
2
|
|
|
|
23,146
|
|
|
|
137
|
|
|
|
51,898
|
|
|
|
|
|
|
|
75,183
|
|
General, administrative and
professional fees
|
|
|
133
|
|
|
|
3,782
|
|
|
|
4,730
|
|
|
|
1,213
|
|
|
|
|
|
|
|
9,858
|
|
Foreign currency loss (gain)
|
|
|
182
|
|
|
|
(63
|
)
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
121
|
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
102
|
|
|
|
6,447
|
|
|
|
|
|
|
|
|
|
|
|
6,549
|
|
Merger-related expenses and deal costs
|
|
|
4,198
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
4,207
|
|
Intercompany interest
|
|
|
(1,177
|
)
|
|
|
8,332
|
|
|
|
(7,223
|
)
|
|
|
68
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
5,142
|
|
|
|
62,548
|
|
|
|
33,533
|
|
|
|
88,925
|
|
|
|
|
|
|
|
190,148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued
operations and noncontrolling interest
|
|
|
58,566
|
|
|
|
13,946
|
|
|
|
37,954
|
|
|
|
5,411
|
|
|
|
(62,047
|
)
|
|
|
53,830
|
|
Income tax (expense) benefit
|
|
|
(499
|
)
|
|
|
90
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(409
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
58,067
|
|
|
|
14,036
|
|
|
|
37,954
|
|
|
|
5,411
|
|
|
|
(62,047
|
)
|
|
|
53,421
|
|
Discontinued operations
|
|
|
|
|
|
|
(223
|
)
|
|
|
5,767
|
|
|
|
|
|
|
|
|
|
|
|
5,544
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
58,067
|
|
|
|
13,813
|
|
|
|
43,721
|
|
|
|
5,411
|
|
|
|
(62,047
|
)
|
|
|
58,965
|
|
Net income attributable to noncontrolling
interest, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
898
|
|
|
|
|
|
|
|
898
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common
stockholders
|
|
$
|
58,067
|
|
|
$
|
13,813
|
|
|
$
|
43,721
|
|
|
$
|
4,513
|
|
|
$
|
(62,047
|
)
|
|
$
|
58,067
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22
CONDENSED CONSOLIDATING STATEMENT OF INCOME
For the Three Months Ended June 30, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
588
|
|
|
$
|
37,924
|
|
|
$
|
67,916
|
|
|
$
|
18,184
|
|
|
$
|
|
|
|
$
|
124,612
|
|
Resident fees and services
|
|
|
|
|
|
|
29,485
|
|
|
|
|
|
|
|
73,914
|
|
|
|
|
|
|
|
103,399
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
Equity earnings in affiliates
|
|
|
87,813
|
|
|
|
792
|
|
|
|
|
|
|
|
|
|
|
|
(88,605
|
)
|
|
|
|
|
Interest and other income
|
|
|
(1
|
)
|
|
|
(11
|
)
|
|
|
117
|
|
|
|
3
|
|
|
|
|
|
|
|
108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
88,400
|
|
|
|
68,190
|
|
|
|
71,366
|
|
|
|
92,101
|
|
|
|
(88,605
|
)
|
|
|
231,452
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
1,062
|
|
|
|
6,689
|
|
|
|
22,694
|
|
|
|
13,549
|
|
|
|
|
|
|
|
43,994
|
|
Depreciation and amortization
|
|
|
162
|
|
|
|
19,407
|
|
|
|
9,695
|
|
|
|
19,379
|
|
|
|
|
|
|
|
48,643
|
|
Property-level operating expenses
|
|
|
|
|
|
|
21,901
|
|
|
|
122
|
|
|
|
50,541
|
|
|
|
|
|
|
|
72,564
|
|
General, administrative and
professional fees
|
|
|
48
|
|
|
|
3,805
|
|
|
|
5,133
|
|
|
|
1,369
|
|
|
|
|
|
|
|
10,355
|
|
Foreign currency (gain) loss
|
|
|
(38
|
)
|
|
|
38
|
|
|
|
6
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
5
|
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
5,975
|
|
|
|
|
|
|
|
|
|
|
|
5,975
|
|
Merger-related expenses and deal costs
|
|
|
|
|
|
|
3,498
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
3,502
|
|
Intercompany interest
|
|
|
(820
|
)
|
|
|
10,164
|
|
|
|
(9,238
|
)
|
|
|
(106
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
414
|
|
|
|
65,502
|
|
|
|
34,391
|
|
|
|
84,731
|
|
|
|
|
|
|
|
185,038
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued
operations and noncontrolling interest
|
|
|
87,986
|
|
|
|
2,688
|
|
|
|
36,975
|
|
|
|
7,370
|
|
|
|
(88,605
|
)
|
|
|
46,414
|
|
Income tax benefit
|
|
|
395
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
395
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
88,381
|
|
|
|
2,688
|
|
|
|
36,975
|
|
|
|
7,370
|
|
|
|
(88,605
|
)
|
|
|
46,809
|
|
Discontinued operations
|
|
|
|
|
|
|
155
|
|
|
|
42,219
|
|
|
|
|
|
|
|
|
|
|
|
42,374
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
88,381
|
|
|
|
2,843
|
|
|
|
79,194
|
|
|
|
7,370
|
|
|
|
(88,605
|
)
|
|
|
89,183
|
|
Net (loss) income attributable to
noncontrolling interest, net of tax
|
|
|
|
|
|
|
(662
|
)
|
|
|
|
|
|
|
1,464
|
|
|
|
|
|
|
|
802
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common
stockholders
|
|
$
|
88,381
|
|
|
$
|
3,505
|
|
|
$
|
79,194
|
|
|
$
|
5,906
|
|
|
$
|
(88,605
|
)
|
|
$
|
88,381
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23
CONDENSED CONSOLIDATING STATEMENT OF INCOME
For the Six Months Ended June 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
1,195
|
|
|
$
|
83,023
|
|
|
$
|
139,344
|
|
|
$
|
35,901
|
|
|
$
|
|
|
|
$
|
259,463
|
|
Resident fees and services
|
|
|
|
|
|
|
66,607
|
|
|
|
|
|
|
|
151,746
|
|
|
|
|
|
|
|
218,353
|
|
Income from loans and investments
|
|
|
2,841
|
|
|
|
880
|
|
|
|
3,601
|
|
|
|
|
|
|
|
|
|
|
|
7,322
|
|
Equity earnings in affiliates
|
|
|
115,741
|
|
|
|
870
|
|
|
|
|
|
|
|
|
|
|
|
(116,611
|
)
|
|
|
|
|
Interest and other income
|
|
|
292
|
|
|
|
36
|
|
|
|
42
|
|
|
|
15
|
|
|
|
|
|
|
|
385
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
120,069
|
|
|
|
151,416
|
|
|
|
142,987
|
|
|
|
187,662
|
|
|
|
(116,611
|
)
|
|
|
485,523
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
2,623
|
|
|
|
11,742
|
|
|
|
40,754
|
|
|
|
33,226
|
|
|
|
|
|
|
|
88,345
|
|
Depreciation and amortization
|
|
|
808
|
|
|
|
44,041
|
|
|
|
19,132
|
|
|
|
38,680
|
|
|
|
|
|
|
|
102,661
|
|
Property-level operating expenses
|
|
|
|
|
|
|
47,598
|
|
|
|
266
|
|
|
|
106,198
|
|
|
|
|
|
|
|
154,062
|
|
General, administrative and
professional fees
|
|
|
120
|
|
|
|
8,058
|
|
|
|
9,838
|
|
|
|
2,525
|
|
|
|
|
|
|
|
20,541
|
|
Foreign currency loss (gain)
|
|
|
42
|
|
|
|
(30
|
)
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
15
|
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
102
|
|
|
|
6,447
|
|
|
|
|
|
|
|
|
|
|
|
6,549
|
|
Merger-related expenses and deal costs
|
|
|
6,467
|
|
|
|
49
|
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
6,526
|
|
Intercompany interest
|
|
|
(2,347
|
)
|
|
|
16,571
|
|
|
|
(14,359
|
)
|
|
|
135
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
7,713
|
|
|
|
128,131
|
|
|
|
62,078
|
|
|
|
180,777
|
|
|
|
|
|
|
|
378,699
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued
operations and noncontrolling interest
|
|
|
112,356
|
|
|
|
23,285
|
|
|
|
80,909
|
|
|
|
6,885
|
|
|
|
(116,611
|
)
|
|
|
106,824
|
|
Income tax (expense) benefit
|
|
|
(1,510
|
)
|
|
|
815
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(695
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
110,846
|
|
|
|
24,100
|
|
|
|
80,909
|
|
|
|
6,885
|
|
|
|
(116,611
|
)
|
|
|
106,129
|
|
Discontinued operations
|
|
|
(160
|
)
|
|
|
117
|
|
|
|
6,047
|
|
|
|
|
|
|
|
|
|
|
|
6,004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
110,686
|
|
|
|
24,217
|
|
|
|
86,956
|
|
|
|
6,885
|
|
|
|
(116,611
|
)
|
|
|
112,133
|
|
Net income attributable to noncontrolling
interest, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,447
|
|
|
|
|
|
|
|
1,447
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common
stockholders
|
|
$
|
110,686
|
|
|
$
|
24,217
|
|
|
$
|
86,956
|
|
|
$
|
5,438
|
|
|
$
|
(116,611
|
)
|
|
$
|
110,686
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24
CONDENSED CONSOLIDATING STATEMENT OF INCOME
For the Six Months Ended June 30, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
1,165
|
|
|
$
|
75,717
|
|
|
$
|
136,860
|
|
|
$
|
33,268
|
|
|
$
|
|
|
|
$
|
247,010
|
|
Resident fees and services
|
|
|
|
|
|
|
58,430
|
|
|
|
|
|
|
|
147,908
|
|
|
|
|
|
|
|
206,338
|
|
Income from loans and investments
|
|
|
|
|
|
|
|
|
|
|
6,614
|
|
|
|
|
|
|
|
|
|
|
|
6,614
|
|
Equity earnings in affiliates
|
|
|
161,560
|
|
|
|
1,411
|
|
|
|
|
|
|
|
|
|
|
|
(162,971
|
)
|
|
|
|
|
Interest and other income
|
|
|
|
|
|
|
(5
|
)
|
|
|
378
|
|
|
|
21
|
|
|
|
|
|
|
|
394
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
162,725
|
|
|
|
135,553
|
|
|
|
143,852
|
|
|
|
181,197
|
|
|
|
(162,971
|
)
|
|
|
460,356
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
2,141
|
|
|
|
12,282
|
|
|
|
47,418
|
|
|
|
28,083
|
|
|
|
|
|
|
|
89,924
|
|
Depreciation and amortization
|
|
|
324
|
|
|
|
40,821
|
|
|
|
20,253
|
|
|
|
36,743
|
|
|
|
|
|
|
|
98,141
|
|
Property-level operating expenses
|
|
|
|
|
|
|
43,422
|
|
|
|
234
|
|
|
|
104,376
|
|
|
|
|
|
|
|
148,032
|
|
General, administrative and
professional fees
|
|
|
89
|
|
|
|
7,424
|
|
|
|
10,826
|
|
|
|
2,614
|
|
|
|
|
|
|
|
20,953
|
|
Foreign currency loss (gain)
|
|
|
5
|
|
|
|
4
|
|
|
|
(8
|
)
|
|
|
(2
|
)
|
|
|
|
|
|
|
(1
|
)
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
6,012
|
|
|
|
68
|
|
|
|
|
|
|
|
6,080
|
|
Merger-related expenses and deal costs
|
|
|
|
|
|
|
5,351
|
|
|
|
205
|
|
|
|
|
|
|
|
|
|
|
|
5,556
|
|
Intercompany interest
|
|
|
(1,501
|
)
|
|
|
22,074
|
|
|
|
(20,414
|
)
|
|
|
(159
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses
|
|
|
1,058
|
|
|
|
131,378
|
|
|
|
64,526
|
|
|
|
171,723
|
|
|
|
|
|
|
|
368,685
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued
operations and noncontrolling interest
|
|
|
161,667
|
|
|
|
4,175
|
|
|
|
79,326
|
|
|
|
9,474
|
|
|
|
(162,971
|
)
|
|
|
91,671
|
|
Income tax benefit
|
|
|
942
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
942
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
162,609
|
|
|
|
4,175
|
|
|
|
79,326
|
|
|
|
9,474
|
|
|
|
(162,971
|
)
|
|
|
92,613
|
|
Discontinued operations
|
|
|
|
|
|
|
(1,559
|
)
|
|
|
61,737
|
|
|
|
11,361
|
|
|
|
|
|
|
|
71,539
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
162,609
|
|
|
|
2,616
|
|
|
|
141,063
|
|
|
|
20,835
|
|
|
|
(162,971
|
)
|
|
|
164,152
|
|
Net (loss) income attributable to
noncontrolling interest, net of tax
|
|
|
|
|
|
|
(1,090
|
)
|
|
|
|
|
|
|
2,633
|
|
|
|
|
|
|
|
1,543
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common
stockholders
|
|
$
|
162,609
|
|
|
$
|
3,706
|
|
|
$
|
141,063
|
|
|
$
|
18,202
|
|
|
$
|
(162,971
|
)
|
|
$
|
162,609
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
For the Six Months Ended June 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash
(used in) provided by operating activities
|
|
$
|
(5,903
|
)
|
|
$
|
87,705
|
|
|
$
|
110,425
|
|
|
$
|
15,490
|
|
|
$
|
|
|
|
$
|
207,717
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities
|
|
|
(11,083
|
)
|
|
|
7,467
|
|
|
|
(14,426
|
)
|
|
|
(3,395
|
)
|
|
|
|
|
|
|
(21,437
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in borrowings under
revolving credit facilities
|
|
|
|
|
|
|
33,280
|
|
|
|
84,000
|
|
|
|
|
|
|
|
|
|
|
|
117,280
|
|
Proceeds from debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
696
|
|
|
|
|
|
|
|
696
|
|
Repayment of debt
|
|
|
|
|
|
|
(55,794
|
)
|
|
|
(149,127
|
)
|
|
|
(10,250
|
)
|
|
|
|
|
|
|
(215,171
|
)
|
Net change in intercompany debt
|
|
|
270,919
|
|
|
|
(116,945
|
)
|
|
|
8,100
|
|
|
|
(162,074
|
)
|
|
|
|
|
|
|
|
|
Payment of deferred financing costs
|
|
|
|
|
|
|
(48
|
)
|
|
|
(1,792
|
)
|
|
|
|
|
|
|
|
|
|
|
(1,840
|
)
|
Cash distribution (to) from affiliates
|
|
|
(88,220
|
)
|
|
|
46,104
|
|
|
|
(120,018
|
)
|
|
|
162,134
|
|
|
|
|
|
|
|
|
|
Cash distribution to common stockholders
|
|
|
(167,829
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(167,829
|
)
|
Contributions from noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
633
|
|
|
|
|
|
|
|
633
|
|
Distributions to noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,277
|
)
|
|
|
|
|
|
|
(4,277
|
)
|
Other
|
|
|
4,673
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,673
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
19,543
|
|
|
|
(93,403
|
)
|
|
|
(178,837
|
)
|
|
|
(13,138
|
)
|
|
|
|
|
|
|
(265,835
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
2,557
|
|
|
|
1,769
|
|
|
|
(82,838
|
)
|
|
|
(1,043
|
)
|
|
|
|
|
|
|
(79,555
|
)
|
Effect of foreign currency translation on
cash and cash equivalents
|
|
|
|
|
|
|
|
|
|
|
(48
|
)
|
|
|
|
|
|
|
|
|
|
|
(48
|
)
|
Cash and cash equivalents at beginning
of period
|
|
|
|
|
|
|
4,332
|
|
|
|
82,886
|
|
|
|
20,179
|
|
|
|
|
|
|
|
107,397
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
2,557
|
|
|
$
|
6,101
|
|
|
$
|
|
|
|
$
|
19,136
|
|
|
$
|
|
|
|
$
|
27,794
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
For the Six Months Ended June 30, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owned
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subsidiary
|
|
|
|
|
|
|
Guarantor
|
|
|
Consolidated
|
|
|
|
|
|
|
Ventas, Inc.
|
|
|
Guarantors
|
|
|
Issuers
|
|
|
Subsidiaries
|
|
|
Elimination
|
|
|
Consolidated
|
|
|
|
(In thousands)
|
|
Net cash provided by operating activities
|
|
$
|
185
|
|
|
$
|
37,618
|
|
|
$
|
120,571
|
|
|
$
|
36,768
|
|
|
$
|
|
|
|
$
|
195,142
|
|
|
Net cash provided by (used in) investing activities
|
|
|
|
|
|
|
58,816
|
|
|
|
24,203
|
|
|
|
(49,463
|
)
|
|
|
|
|
|
|
33,556
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in borrowings under
revolving credit facilities
|
|
|
|
|
|
|
(39,688
|
)
|
|
|
(250,240
|
)
|
|
|
|
|
|
|
|
|
|
|
(289,928
|
)
|
Proceeds from debt
|
|
|
|
|
|
|
261
|
|
|
|
166,000
|
|
|
|
134,854
|
|
|
|
|
|
|
|
301,115
|
|
Repayment of debt
|
|
|
|
|
|
|
(80,900
|
)
|
|
|
(413,374
|
)
|
|
|
(8,742
|
)
|
|
|
|
|
|
|
(503,016
|
)
|
Net change in intercompany debt
|
|
|
(40,240
|
)
|
|
|
(25,426
|
)
|
|
|
88,956
|
|
|
|
(23,290
|
)
|
|
|
|
|
|
|
|
|
Payment of deferred financing costs
|
|
|
|
|
|
|
(986
|
)
|
|
|
(8,840
|
)
|
|
|
(3,596
|
)
|
|
|
|
|
|
|
(13,422
|
)
|
Issuance of common stock, net
|
|
|
299,201
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
299,201
|
|
Cash distribution (to) from affiliates
|
|
|
(110,788
|
)
|
|
|
45,604
|
|
|
|
147,893
|
|
|
|
(82,709
|
)
|
|
|
|
|
|
|
|
|
Cash distribution to common stockholders
|
|
|
(153,815
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(153,815
|
)
|
Contributions from noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
306
|
|
|
|
|
|
|
|
306
|
|
Distributions to noncontrolling interest
|
|
|
|
|
|
|
(379
|
)
|
|
|
|
|
|
|
(4,645
|
)
|
|
|
|
|
|
|
(5,024
|
)
|
Other
|
|
|
5,457
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,457
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by financing activities
|
|
|
(185
|
)
|
|
|
(101,514
|
)
|
|
|
(269,605
|
)
|
|
|
12,178
|
|
|
|
|
|
|
|
(359,126
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
|
|
|
|
|
(5,080
|
)
|
|
|
(124,831
|
)
|
|
|
(517
|
)
|
|
|
|
|
|
|
(130,428
|
)
|
Effect of foreign currency translation on
cash and cash equivalents
|
|
|
|
|
|
|
(1
|
)
|
|
|
139
|
|
|
|
1
|
|
|
|
|
|
|
|
139
|
|
Cash and cash equivalents at beginning
of period
|
|
|
|
|
|
|
10,323
|
|
|
|
144,918
|
|
|
|
21,571
|
|
|
|
|
|
|
|
176,812
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
|
|
|
$
|
5,242
|
|
|
$
|
20,226
|
|
|
$
|
21,055
|
|
|
$
|
|
|
|
$
|
46,523
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Cautionary Statements
Unless otherwise indicated or except where the context otherwise requires, the terms we,
us and our and other similar terms in this Quarterly Report on Form 10-Q refer to Ventas, Inc.
and its consolidated subsidiaries.
Forward-Looking Statements
This Quarterly Report on Form 10-Q includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of
the Securities Exchange Act of 1934, as amended (the Exchange Act). All statements regarding our
or our tenants, operators, managers or borrowers expected future financial position, results of
operations, cash flows, funds from operations, dividends and dividend plans, financing plans,
business strategy, budgets, projected costs, operating metrics, capital expenditures, competitive
positions, acquisitions, investment opportunities, merger integration, growth opportunities,
dispositions, expected lease income, continued qualification as a real estate investment trust
(REIT), plans and objectives of management for future operations and statements that include
words such as anticipate, if, believe, plan, estimate, expect, intend, may,
could, should, will and other similar expressions are forward-looking statements. These
forward-looking statements are inherently uncertain, and security holders must recognize that
actual results may differ from our expectations. We do not undertake a duty to update these
forward-looking statements, which speak only as of the date on which they are made.
Our actual future results and trends may differ materially from expectations depending on a
variety of factors discussed in our filings with the Securities and Exchange Commission (the
SEC). These factors include without limitation:
|
|
|
The ability and willingness of our tenants, operators, borrowers,
managers and other third parties to meet and/or perform the obligations under
their respective contractual arrangements with us, including, in some cases, their
obligations to indemnify, defend and hold us harmless from and against various
claims, litigation and liabilities;
|
|
|
|
The ability of our tenants, operators, borrowers and managers to
maintain the financial strength and liquidity necessary to satisfy their
respective obligations and liabilities to third parties, including without
limitation obligations under their existing credit facilities and other
indebtedness;
|
|
|
|
Our success in implementing our business strategy and our ability to
identify, underwrite, finance, consummate and integrate diversifying acquisitions
or investments, including those in different asset types and outside the United
States;
|
|
|
|
The nature and extent of future competition;
|
|
|
|
The extent of future or pending healthcare reform and regulation,
including cost containment measures and changes in reimbursement policies,
procedures and rates;
|
|
|
|
Increases in our cost of borrowing as a result of changes in interest
rates and other factors;
|
|
|
|
The ability of our operators and managers, as applicable, to deliver
high quality services, to attract and retain qualified personnel and to attract
residents and patients;
|
|
|
|
The results of litigation affecting us;
|
|
|
|
Changes in general economic conditions and/or economic conditions in
the markets in which we may, from time to time, compete, and the effect of those
changes on our revenues and our ability to access the capital markets or other
sources of funds;
|
|
|
|
Our ability to pay down, refinance, restructure and/or extend our
indebtedness as it becomes due;
|
|
|
|
Our ability and willingness to maintain our qualification as a REIT
due to economic, market, legal, tax or other considerations;
|
|
|
|
Final determination of our taxable net income for the year ended
December 31, 2009 and for the year ending December 31, 2010;
|
28
|
|
|
The ability and willingness of our tenants to renew their leases with
us upon expiration of the leases and our ability to reposition our properties on
the same or better terms in the event such leases expire and are not renewed by
our tenants or in the event we exercise our right to replace an existing tenant
upon a default;
|
|
|
|
Risks associated with our senior living operating portfolio, such as
factors causing volatility in our operating income and earnings generated by our
properties, including without limitation national and regional economic
conditions, costs of materials, energy, labor and services, employee benefit
costs, insurance costs and professional and general liability claims, and the
timely delivery of accurate property-level financial results for those properties;
|
|
|
|
The movement of U.S. and Canadian exchange rates;
|
|
|
|
Year-over-year changes in the Consumer Price Index and the effect of
those changes on the rent escalators, including the rent escalator for Master
Lease 2 with Kindred Healthcare, Inc. (together with its subsidiaries, Kindred),
and our earnings;
|
|
|
|
Our ability and the ability of our tenants, operators, borrowers and
managers to obtain and maintain adequate liability and other insurance from
reputable and financially stable providers;
|
|
|
|
The impact of increased operating costs and uninsured professional
liability claims on the liquidity, financial condition and results of operations
of our tenants, operators, borrowers and managers and the ability of our tenants,
operators, borrowers and managers to accurately estimate the magnitude of those
claims;
|
|
|
|
The ability and willingness of the lenders under our unsecured
revolving credit facilities to fund, in whole or in part, borrowing requests made
by us from time to time;
|
|
|
|
Risks associated with our recent acquisition of businesses owned and
operated by Lillibridge Healthcare Services, Inc. and its related entities
(collectively, Lillibridge), including our ability to successfully design,
develop and manage MOBs and to retain key personnel;
|
|
|
|
The ability of the hospitals on or near whose campuses our MOBs are
located and their affiliated health systems to remain competitive and financially
viable and to attract physicians and physician groups;
|
|
|
|
Our ability to maintain or expand our relationships with our existing
and future hospital and health system clients;
|
|
|
|
Risks associated with our investments in joint ventures, including
our lack of sole decision-making authority and our reliance on our joint venture
partners financial condition;
|
|
|
|
The impact of market or issuer events on the liquidity or value of
our investments in marketable securities; and
|
|
|
|
The impact of any financial, accounting, legal or regulatory issues
that may affect us or our major tenants, operators and managers.
|
Many of these factors are beyond our control and the control of our management.
Kindred, Brookdale Senior Living and Sunrise Information
Each of Kindred, Brookdale Senior Living Inc. (together with its subsidiaries, which include
Brookdale Living Communities, Inc. (Brookdale) and Alterra Healthcare Corporation (Alterra),
Brookdale Senior Living) and Sunrise Senior Living, Inc. (together with its subsidiaries,
Sunrise) is subject to the reporting requirements of the SEC and is required to file with the SEC
annual reports containing audited financial information and quarterly reports containing unaudited
financial information. The information related to Kindred, Brookdale Senior Living and Sunrise
contained or referred to in this Quarterly Report on Form 10-Q is derived from filings made by
Kindred, Brookdale Senior Living or Sunrise, as the case may be, with the SEC or other publicly
available information, or has been provided to us by Kindred, Brookdale Senior Living or Sunrise.
We have not verified this information either through an independent investigation or by reviewing
Kindreds, Brookdale Senior Livings or Sunrises public filings. We have no reason to believe that
this information is inaccurate in any material respect, but we cannot assure you that all of this
information is accurate. Kindreds,
Brookdale Senior Livings and Sunrises filings with the SEC can be found at the SECs website
at www.sec.gov. We are providing this data for informational purposes only, and you are encouraged
to obtain Kindreds, Brookdale Senior Livings and Sunrises publicly available filings from the
SEC.
29
Company Overview
We are a REIT with a geographically diverse portfolio of seniors housing and healthcare
properties in the United States and Canada. As of June 30, 2010, this portfolio consisted of 503
assets: 242 seniors housing communities, 187 skilled nursing facilities, 40 hospitals and 34
medical office buildings (MOBs) and other properties in 43 states and two Canadian provinces.
With the exception of our seniors housing communities that are managed by independent third
parties, such as Sunrise, pursuant to long-term management agreements and the majority of our MOBs,
we lease our properties to healthcare operating companies under triple-net or absolute-net
leases, which require the tenants to pay all property-related expenses. We also had real estate
loan investments relating to seniors housing and healthcare companies or properties as of June 30,
2010.
We conduct substantially all of our business through our wholly owned subsidiaries, Ventas
Realty, Limited Partnership (Ventas Realty), PSLT OP, L.P. and Ventas SSL, Inc. Our primary
business consists of acquiring, financing and owning seniors housing and healthcare properties and
leasing those properties to third parties or operating those properties through independent
third-party managers.
Our business strategy is comprised of three principal objectives: (1) portfolio
diversification; (2) stable earnings and growth; and (3) maintaining a strong balance sheet and
liquidity.
Operating Highlights and Key Performance Trends
2010 Highlights
|
|
|
Since January 1, 2010, we have received $235.0 million of additional capital commitments
for the portion of our unsecured revolving credit facilities maturing in 2012. As a
result, we now have $1.0 billion of aggregate borrowing capacity under our revolving credit
facilities, all of which matures on April 26, 2012.
|
|
|
|
Our Board of Directors declared the first and second quarterly installments of our 2010
dividend in the amount of $0.535 per share, which represents a 4.4% increase over our 2009
quarterly dividend. The first quarterly installment of the 2010 dividend was paid on March
31, 2010 to stockholders of record on March 12, 2010. The second quarterly installment of
the 2010 dividend was paid on June 30, 2010 to stockholders of record on June 11, 2010.
|
|
|
|
During the first half of 2010, we sold five seniors housing communities for
approximately $25.0 million, including a lease termination fee of $0.2 million, and
recognized a gain from these sales of approximately $5.0 million.
|
|
|
|
On July 1, 2010, we completed the acquisition of businesses owned and operated by
Lillibridge and its real estate interests in 96 MOBs and ambulatory facilities for
approximately $381 million, including the assumption of debt. Lillibridge is a
fully-integrated healthcare real estate company that owns, designs, develops and manages
MOBs, and offers strategic, financial and operational real estate advisory services,
principally for highly rated, not-for-profit healthcare systems
nationally. Lillibridge manages for third parties 31 MOBs. As a result of
the transaction, we acquired: a 100% interest in Lillibridges property management,
leasing, construction and development, advisory and asset management services business; a
100% interest in 38 MOBs comprising 1.9 million square feet of space; a 20% joint venture
interest in 24 MOBs comprising 1.5 million square feet; and a 5% joint venture interest in
34 MOBs comprising 2.3 million square feet. We are the managing member of these joint
ventures and the property manager for the joint venture properties. An institutional third
party holds the majority interests in these joint ventures, and we have a right of first
offer on those interests. We funded the acquisition with cash on hand (including $11.1
million in earnest money deposits made in June 2010), borrowings under our revolving credit
facilities and the assumption of mortgage debt. In connection with
the acquisition, approximately $133 million of mortgage debt was
paid off. Our portfolio now includes 153 owned
or managed MOBs with 8.6 million square feet in 20 states, including the District of
Columbia.
|
30
Concentration Risk
Concentration ratios are useful measures in understanding the potential risks of economic
downturns involving our various property types, locations or tenants, operators or managers. We
evaluate our concentration risk in terms of investment mix and operations mix. Investment mix
measures the portion of our investments related to certain property types or tenants, operators or
managers. Operations mix measures the portion of our operating results attributable to certain
tenants, operators or managers or geographic location. The following tables reflect our
concentration risk as of the dates and for the periods presented:
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
|
|
|
|
|
|
|
Investment mix by type
1
:
|
|
|
|
|
|
|
|
|
Seniors housing communities
|
|
|
73.9
|
%
|
|
|
74.1
|
%
|
Skilled nursing facilities
|
|
|
12.6
|
%
|
|
|
12.6
|
%
|
Hospitals
|
|
|
5.3
|
%
|
|
|
5.4
|
%
|
MOBs
|
|
|
5.9
|
%
|
|
|
5.8
|
%
|
Loans receivable, net
|
|
|
2.2
|
%
|
|
|
2.0
|
%
|
Other properties
|
|
|
0.1
|
%
|
|
|
0.1
|
%
|
|
|
|
|
|
|
|
|
|
Investment mix by tenant, operator and manager
1
:
|
|
|
|
|
|
|
|
|
Sunrise
|
|
|
38.9
|
%
|
|
|
38.9
|
%
|
Kindred
|
|
|
14.1
|
%
|
|
|
14.1
|
%
|
Brookdale Senior Living
|
|
|
21.5
|
%
|
|
|
21.8
|
%
|
|
|
|
1
|
|
Ratios are based on the gross book value of real estate investments (including assets
held for sale) as of each reporting date.
|
31
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
Tenant, operator and manager operations mix:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
1
:
|
|
|
|
|
|
|
|
|
Sunrise
|
|
|
44.7
|
%
|
|
|
44.2
|
%
|
Kindred
|
|
|
25.2
|
%
|
|
|
26.8
|
%
|
Brookdale Senior Living
|
|
|
12.5
|
%
|
|
|
13.0
|
%
|
All others
|
|
|
16.0
|
%
|
|
|
14.5
|
%
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
2
:
|
|
|
|
|
|
|
|
|
Sunrise
|
|
|
22.1
|
%
|
|
|
20.3
|
%
|
Kindred
|
|
|
35.8
|
%
|
|
|
40.3
|
%
|
Brookdale Senior Living
|
|
|
16.2
|
%
|
|
|
18.7
|
%
|
All others
|
|
|
25.9
|
%
|
|
|
20.7
|
%
|
|
|
|
|
|
|
|
|
|
NOI
3
:
|
|
|
|
|
|
|
|
|
Sunrise
|
|
|
21.9
|
%
|
|
|
20.3
|
%
|
Kindred
|
|
|
37.0
|
%
|
|
|
38.8
|
%
|
Brookdale Senior Living
|
|
|
18.3
|
%
|
|
|
19.2
|
%
|
All others
|
|
|
22.8
|
%
|
|
|
21.7
|
%
|
|
|
|
|
|
|
|
|
|
Geographic operations mix
4
:
|
|
|
|
|
|
|
|
|
California
|
|
|
12.5
|
%
|
|
|
12.7
|
%
|
Illinois
|
|
|
10.4
|
%
|
|
|
10.4
|
%
|
Ontario
|
|
|
5.9
|
%
|
|
|
5.3
|
%
|
Pennsylvania
|
|
|
5.6
|
%
|
|
|
5.6
|
%
|
Massachusetts
|
|
|
5.3
|
%
|
|
|
5.3
|
%
|
All others
|
|
|
58.7
|
%
|
|
|
59.2
|
%
|
|
|
|
1
|
|
Total revenues includes revenue from loans and investments and interest and other
income. Revenues from properties sold or held for sale as of the reporting date are included in
this presentation.
|
|
2
|
|
Adjusted EBITDA is defined as earnings before interest, taxes, depreciation and
amortization (including non-cash stock-based compensation), excluding merger-related expenses and
deal costs and gains and losses on real estate disposals (including amounts in discontinued
operations).
|
|
3
|
|
Net operating income (NOI) is defined as total revenues, less interest and other
income and property-level operating expenses (including amounts in discontinued operations).
|
|
4
|
|
Ratios are based on total revenues for each period presented. Total revenues includes
revenue from loans and investments and interest and other income. Revenues from properties held
for sale as of the reporting date are included in this presentation. Revenues from properties sold
as of the reporting date are excluded from this presentation.
|
See Non-GAAP Financial Measures for further discussion and reconciliations of NOI and Adjusted
EBITDA to our net income, as computed in accordance with U.S. generally accepted accounting
principles (GAAP).
32
Recent Developments Regarding Government Regulation
Healthcare Legislation
In March 2010, the President signed into law the Patient Protection and Affordable Care Act,
along with a reconciliation measure, the Health Care and Education Reconciliation Act of 2010
(collectively, the Affordable Care Act). The passage of the Affordable Care Act has resulted in
comprehensive reform legislation which is expected to expand health care coverage to millions of
currently uninsured people beginning in 2014. To help fund this expansion, the Affordable Care Act
outlines certain reductions in Medicare reimbursement rates for various healthcare providers,
including long-term acute care hospitals and skilled nursing facilities, as well as certain other
changes to Medicare payment methodologies.
The Affordable Care Act, among other things, reduces the inflationary market basket increase
included in standard federal payment rates for long-term acute care hospitals by 25 basis points in
fiscal year 2010, 50 basis points in fiscal year 2011, 10 basis points in fiscal years 2012 and
2013, 30 basis points in fiscal year 2014, 20 basis points in fiscal years 2015 and 2016, and 75
basis points in fiscal years 2017 through 2019. In addition, under the Affordable Care Act,
long-term acute care hospitals and skilled nursing facilities will be subject to a rate adjustment in the market basket increase,
beginning in fiscal year 2012, to reflect improvements in productivity. The Affordable Care Act
also extends for two years the long-term acute care hospital payment policy changes provided by the
Medicare, Medicaid, and SCHIP Extension Act of 2007 and delays the implementation of the RUG-IV
classification model for skilled nursing facilities until fiscal year 2012.
We are currently analyzing the financial implications of the Affordable Care Act on the
operators of our properties. We cannot assure you that existing or future healthcare reform
legislation or changes in the administration or implementation of governmental and non-governmental
healthcare reimbursement programs will not have a material adverse effect on our operators
liquidity, financial condition or results of operations, or on their ability to satisfy their
obligations to us, which, in turn, could have a material adverse effect on our business, financial
condition, results of operations and liquidity, on our ability to service our indebtedness and
other obligations and on our ability to make distributions to our stockholders, as required for us
to continue to qualify as a REIT (a Material Adverse Effect).
Medicare Reimbursement; Long-Term Acute Care Hospitals
On May 4, 2010, the Centers for Medicare & Medicaid Services (CMS) published its proposed
rule updating the prospective payment system for long-term acute care hospitals (LTAC PPS) for the
2011 fiscal year (October 1, 2010 through September 30, 2011). Under the proposed rule, the LTAC
PPS standard federal payment rate would decrease by 0.1% in fiscal year 2011, reflecting a 2.4%
increase in the market basket index, less a 2.5% adjustment to account for an increase in case-mix
in fiscal year 2008 and 2009 that CMS attributes to changes in documentation and coding practices,
rather than patient severity. However, due to the timing of the proposed rule in relation to the
passage of the Affordable Care Act, the proposed rule did not reflect statutory changes made by
that legislation. Accordingly, on June 2, 2010, CMS published a supplement to the May 4, 2010
proposed rule to address certain provisions of the Affordable Care Act. Among other things, the
supplemental proposed rule updates the increase in the market basket index for fiscal year 2011 to
1.9%, reflecting the 50 basis point reduction required by the Affordable Care Act. Despite the
decrease in the LTAC PPS standard federal payment rate, CMS estimates that net payments to
long-term acute care hospitals under the supplemental proposed rule would increase by approximately
$13 million, or 0.3%, in fiscal year 2011 due to area wage adjustments, as well as increases in
high-cost and short-stay outlier payments.
This rule is a
proposed rule and is not final. The proposed rule also does not reflect additional statutory changes made by the Affordable Care Act. We are currently analyzing the financial
implications of this proposed rule on the operators of our long-term acute care hospitals.
We cannot assure you that the final rule issued by CMS or other future updates to LTAC PPS or
Medicare reimbursement for long-term acute care hospitals will not materially adversely affect our
operators, which, in turn, could have a Material Adverse Effect on us.
Medicare Reimbursement; Skilled Nursing Facilities
On June 25, 2010, CMS placed on public display its proposed Medicare Physician Fee Schedule
rule for the 2011 calendar year. Under the proposed rule, reimbursement rates for outpatient
therapy under Part B, including therapy provided in skilled nursing facilities, would be reduced by
approximately 10% (net of a recent 2.2% rate increase enacted as part of other legislation).
33
On July 16, 2010, CMS placed on public display its proposed rule updating the prospective
payment system for skilled nursing facilities (SNF PPS) for the 2011 fiscal year (October 1, 2010
through September 30, 2011). Under the proposed rule, the update to the SNF PPS standard federal
payment rate for skilled nursing facilities includes a 2.3% increase in the market basket index for
the 2011 fiscal year. The proposed rule also provides a 0.6% adjustment due to an overestimated
increase in the market basket index for the 2009 fiscal year. CMS estimates that net payments to
skilled nursing facilities as a result of the market basket increase and the adjustment under the
proposed rule would increase by approximately $542 million, or 1.7%, in fiscal year 2011.
The proposed rule includes other provisions, such as the introduction of concurrent therapy,
changes to the look-back period and modification of the implementation schedule for the RUG-IV
classification model, that may additionally affect net payments to skilled nursing facilities.
These rules are proposed rules and are not final. We are currently analyzing the financial
implications of these proposed rules on the operators of our skilled nursing facilities.
Critical Accounting Policies and Estimates
Our Consolidated Financial Statements included in Item 1 of this Quarterly Report on Form 10-Q
have been prepared in accordance with GAAP for interim financial information set forth in the
Accounting Standards Codification (ASC), as published by the Financial Accounting Standards Board
(FASB). GAAP requires us to make estimates and assumptions about future events that affect the
reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and expenses during the
reporting periods. We base these estimates on our experience and on various other assumptions
believed to be reasonable under the circumstances. However, if our judgment or interpretation of
the facts and circumstances relating to various transactions or other matters had been different,
it is possible that different accounting treatment would have been applied, resulting in a
different presentation of our financial statements. From time to time, we re-evaluate our estimates
and assumptions, and in the event estimates or assumptions prove to be different from actual
results, we make adjustments in subsequent periods to reflect more current estimates and
assumptions about matters that are inherently uncertain. The critical accounting policies that
affect our more significant estimates and assumptions used in the preparation of our Consolidated
Financial Statements included in Item 1 of this Quarterly Report on Form 10-Q are described in our
Current Report on Form 8-K filed with the SEC on May 3, 2010.
Results of Operations
As of June 30, 2010, we operated through two reportable business segments: triple-net leased
properties and senior living operations. Our triple-net leased properties segment consists of
acquiring and owning seniors housing and healthcare properties in the United States and
leasing those properties to healthcare operating companies under triple-net or absolute-net
leases, which require the tenants to pay all property-related expenses. Our senior living
operations segment primarily consists of investments in seniors housing communities located in the
United States and Canada for which we engage independent third parties, such as Sunrise, to manage
the operations.
As of June 30, 2010, our MOB segment consists of leasing space primarily to physicians and
other healthcare businesses and engaging third parties to manage those operations. Due to our
limited operation of and allocation of capital to the MOBs, the MOB segment is not individually
reported and is included in All Other because it did not meet necessary quantitative and
qualitative thresholds at June 30, 2010.
34
Three Months Ended June 30, 2010 and 2009
The table below shows the results of operations for the three months ended June 30, 2010 and
2009 and the dollar and percentage changes in those results from period to period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
NOI:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net Leased Properties
|
|
$
|
118,044
|
|
|
$
|
116,269
|
|
|
$
|
1,775
|
|
|
|
1.5
|
%
|
Senior Living Operations
|
|
|
38,808
|
|
|
|
33,857
|
|
|
|
4,951
|
|
|
|
14.6
|
|
All Other
|
|
|
11,821
|
|
|
|
8,654
|
|
|
|
3,167
|
|
|
|
36.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total NOI
|
|
|
168,673
|
|
|
|
158,780
|
|
|
|
9,893
|
|
|
|
6.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
122
|
|
|
|
108
|
|
|
|
14
|
|
|
|
13.0
|
|
Interest expense
|
|
|
(44,045
|
)
|
|
|
(43,994
|
)
|
|
|
(51
|
)
|
|
|
0.1
|
|
Depreciation and amortization
|
|
|
(50,185
|
)
|
|
|
(48,643
|
)
|
|
|
(1,542
|
)
|
|
|
3.2
|
|
General, administrative and professional fees
|
|
|
(9,858
|
)
|
|
|
(10,355
|
)
|
|
|
497
|
|
|
|
(4.8
|
)
|
Foreign currency loss
|
|
|
(121
|
)
|
|
|
(5
|
)
|
|
|
(116
|
)
|
|
|
>100
|
|
Loss on extinguishment of debt
|
|
|
(6,549
|
)
|
|
|
(5,975
|
)
|
|
|
(574
|
)
|
|
|
9.6
|
|
Merger-related expenses and deal costs
|
|
|
(4,207
|
)
|
|
|
(3,502
|
)
|
|
|
(705
|
)
|
|
|
20.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued operations and
noncontrolling interest
|
|
|
53,830
|
|
|
|
46,414
|
|
|
|
7,416
|
|
|
|
16.0
|
|
Income tax (expense) benefit
|
|
|
(409
|
)
|
|
|
395
|
|
|
|
(804
|
)
|
|
|
>100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
53,421
|
|
|
|
46,809
|
|
|
|
6,612
|
|
|
|
14.1
|
|
Discontinued operations
|
|
|
5,544
|
|
|
|
42,374
|
|
|
|
(36,830
|
)
|
|
|
(86.9
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
58,965
|
|
|
|
89,183
|
|
|
|
(30,218
|
)
|
|
|
(33.9
|
)
|
Net income attributable to noncontrolling interest
|
|
|
898
|
|
|
|
802
|
|
|
|
96
|
|
|
|
12.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
58,067
|
|
|
$
|
88,381
|
|
|
$
|
(30,314
|
)
|
|
|
(34.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI Triple-Net Leased Properties
NOI for our triple-net leased properties consists solely of rental income earned from these
assets. We incur no direct operating expenses for this segment.
The increase in our second quarter 2010 NOI over the same period in 2009 primarily reflects
$1.6 million of additional rent resulting from the annual escalators in the rent paid under our
master lease agreements with Kindred (the Kindred Master Leases) effective May 1, 2010 and
various other escalations in the rent paid on our other existing properties.
Revenues related to our triple-net leased properties segment consist of fixed rental amounts
(subject to annual escalations) received directly from our tenants based on the terms of the
applicable leases and generally do not depend on the operating performance of our properties.
Therefore, while occupancy information is relevant to the operations of our tenants, our revenues
and financial results are not directly impacted by the overall occupancy levels or profits at the
triple-net leased properties.
35
NOI Senior Living Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
NOI Senior Living Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
109,874
|
|
|
$
|
103,400
|
|
|
$
|
6,474
|
|
|
|
6.3
|
%
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
7
|
|
|
|
1
|
|
|
|
6
|
|
|
|
> 100
|
|
Property-level operating expenses
|
|
|
71,059
|
|
|
|
69,542
|
|
|
|
1,517
|
|
|
|
2.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI
|
|
$
|
38,808
|
|
|
$
|
33,857
|
|
|
$
|
4,951
|
|
|
|
14.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The majority of revenues related to our senior living operations segment are resident fees and
services, which consist primarily of all amounts earned from residents at our seniors housing
communities, including rental fees related to resident leases, extended health care fees and other
ancillary service income. The increase in revenues during the second quarter of 2010 over the same
period in 2009 is attributed primarily to a decrease in the average Canadian dollar exchange rate,
which had a favorable impact of $2.4 million in 2010, higher occupancy rates and higher average
daily rates in our communities. Average resident occupancy rates related to our senior living operations
managed by third parties were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Communities
|
|
|
Average Resident Occupancy
|
|
|
|
as of June 30,
|
|
|
For the Three Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Stabilized Communities
|
|
|
80
|
|
|
|
78
|
|
|
|
88.4
|
%
|
|
|
87.2
|
%
|
Lease-Up Communities
|
|
|
2
|
|
|
|
1
|
|
|
|
86.5
|
%
|
|
|
67.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
82
|
|
|
|
79
|
|
|
|
88.3
|
%
|
|
|
86.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same-Store Stabilized Communities
|
|
|
78
|
|
|
|
78
|
|
|
|
88.4
|
%
|
|
|
87.2
|
%
|
Property-level operating expenses related to our senior living operations segment primarily
include expenses such as labor, food, utilities, marketing, management and other property operating
costs. The increase in property-level operating expenses in the second quarter of 2010 compared to the same period in 2009
primarily reflects a decrease in the average Canadian dollar exchange rate, which had an
unfavorable impact of $1.5 million in 2010 and increases in labor and marketing costs, partially
offset by the receipt of $3 million for expense overages at our Sunrise-managed communities in the
second quarter of 2010.
NOI All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
NOI All Other:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
12,240
|
|
|
$
|
8,343
|
|
|
$
|
3,897
|
|
|
|
46.7
|
%
|
Other revenue
|
|
|
3,727
|
|
|
|
3,397
|
|
|
|
330
|
|
|
|
9.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
15,967
|
|
|
|
11,740
|
|
|
|
4,227
|
|
|
|
36.0
|
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
22
|
|
|
|
64
|
|
|
|
(42
|
)
|
|
|
(65.6
|
)
|
Property-level operating expenses
|
|
|
4,124
|
|
|
|
3,022
|
|
|
|
1,102
|
|
|
|
36.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI
|
|
$
|
11,821
|
|
|
$
|
8,654
|
|
|
$
|
3,167
|
|
|
|
36.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36
All other revenues consist primarily of rental income related to the MOBs, income from loans
and investments and other miscellaneous income. The increase in all other revenues during the
second quarter of 2010 compared to the same period in 2009 is attributed primarily to $3.7 million of
additional rent relating to MOBs acquired during 2009 and a $0.4 million increase in income from
loans and investments due primarily to interest earned on the investments we made during 2009.
Average occupancy rates related to our MOBs were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average Occupancy
|
|
|
|
Number
of Properties at June 30,
|
|
|
For the Three Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Stabilized MOBs
|
|
|
22
|
|
|
|
19
|
|
|
|
94.7
|
%
|
|
|
93.5
|
%
|
Lease-Up MOBs
|
|
|
4
|
|
|
|
3
|
|
|
|
81.6
|
%
|
|
|
67.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
26
|
|
|
|
22
|
|
|
|
92.1
|
%
|
|
|
89.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same-Store Stabilized MOBs
|
|
|
18
|
|
|
|
18
|
|
|
|
93.5
|
%
|
|
|
93.5
|
%
|
All other property-level operating expenses include all expenses related to our MOB
operations. The change in property-level operating expenses in the second quarter of 2010 over
2009 primarily reflects increased expenses related to acquisitions that occurred during 2009.
Interest Expense
Total interest expense, including interest allocated to discontinued operations of $0.1
million and $0.7 million for the three months ended June 30, 2010 and 2009, respectively, decreased
$0.5 million in the second quarter of 2010 over the same period in 2009 primarily due to a $0.8
million reduction in interest from lower loan balances. Interest expense includes $2.3 million and
$1.9 million of amortized deferred financing fees for the three months ended June 30, 2010 and
2009, respectively. Our effective interest rate was 6.6% for the three
months ended June 30, 2010, an increase of five basis points from the three months ended June 30, 2009. A decrease in the
average Canadian dollar exchange rate had an unfavorable impact on interest expense of $0.2 million
for the three months ended June 30, 2010, compared to the same period in 2009.
Depreciation and Amortization
Depreciation and amortization expense increased primarily due to properties we acquired or
developed during the period from July 1, 2009 through June 30, 2010.
Loss on Extinguishment of Debt
Loss on extinguishment of debt for the three months ended June 30, 2010 relates primarily to
our redemption of all $142.7 million principal amount outstanding of our 7
1
/
8
% senior notes due 2015,
at a redemption price equal to 103.56% of par, plus accrued and unpaid interest to the redemption
date, pursuant to the call option contained in the indenture governing the notes. Loss on
extinguishment of debt for the same period in 2009 relates primarily to our cash tender offers for
our outstanding senior notes completed in May 2009.
Merger-Related Expenses and Deal Costs
Merger-related expenses and deal costs consisted of expenses relating to our favorable $101.6
million jury verdict against HCP, Inc. (HCP) arising out of our Sunrise Senior Living REIT
(Sunrise REIT) acquisition and deal costs required by GAAP to be expensed rather than capitalized
into the asset value, which include certain fees and expenses incurred to acquire Lillibridge in
2010 and other deal costs for unconsummated transactions.
Income Tax Expense/Benefit
Income tax expense/benefit before noncontrolling interest represents amounts related to our
taxable REIT subsidiaries as a result of the Sunrise REIT acquisition. The change from an income
tax benefit in 2009 to an income tax expense in 2010 is primarily due to increased NOI at our
seniors housing communities managed by Sunrise. Excluding income taxes related to noncontrolling
interest, we have net tax benefit in both periods. See Note 9
Income Taxes of the Notes to
Consolidated Financial Statements included in Item 1 of this Quarterly Report on Form 10-Q.
37
Discontinued Operations
Discontinued operations for the second quarter of 2010 include a $4.9 million net gain on the
sale of four assets sold during the second quarter of 2010 and a lease termination fee of $0.2
million. Discontinued operations for the same period in 2009 include a gain on sale of assets of
$38.9 million and a lease termination fee of $2.3 million related to six assets sold during the
second quarter of 2009. See Note 4Dispositions of the Notes to Consolidated Financial
Statements included in Item 1 of this Quarterly Report on Form 10-Q.
Net Income Attributable to Noncontrolling Interest
Net income attributable to noncontrolling interest, net of tax primarily represents Sunrises
share of net income from its ownership percentage in 58 of our seniors housing communities.
Six Months Ended June 30, 2010 and 2009
The table below shows the results of operations for the six months ended June 30, 2010 and
2009 and the dollar and percentage changes in those results from period to period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
NOI:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Triple-Net Leased Properties
|
|
$
|
235,034
|
|
|
$
|
230,319
|
|
|
$
|
4,715
|
|
|
|
2.0
|
%
|
Senior Living Operations
|
|
|
72,617
|
|
|
|
64,342
|
|
|
|
8,275
|
|
|
|
12.9
|
|
All Other
|
|
|
23,425
|
|
|
|
17,269
|
|
|
|
6,156
|
|
|
|
35.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total NOI
|
|
|
331,076
|
|
|
|
311,930
|
|
|
|
19,146
|
|
|
|
6.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
385
|
|
|
|
394
|
|
|
|
(9
|
)
|
|
|
(2.3
|
)
|
Interest expense
|
|
|
(88,345
|
)
|
|
|
(89,924
|
)
|
|
|
1,579
|
|
|
|
(1.8
|
)
|
Depreciation and amortization
|
|
|
(102,661
|
)
|
|
|
(98,141
|
)
|
|
|
(4,520
|
)
|
|
|
4.6
|
|
General, administrative and professional fees
|
|
|
(20,541
|
)
|
|
|
(20,953
|
)
|
|
|
412
|
|
|
|
(2.0
|
)
|
Foreign currency (loss) gain
|
|
|
(15
|
)
|
|
|
1
|
|
|
|
(16
|
)
|
|
|
>100
|
|
Loss on extinguishment of debt
|
|
|
(6,549
|
)
|
|
|
(6,080
|
)
|
|
|
(469
|
)
|
|
|
7.7
|
|
Merger-related expenses and deal costs
|
|
|
(6,526
|
)
|
|
|
(5,556
|
)
|
|
|
(970
|
)
|
|
|
17.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes, discontinued operations and
noncontrolling interest
|
|
|
106,824
|
|
|
|
91,671
|
|
|
|
15,153
|
|
|
|
16.5
|
|
Income tax (expense) benefit
|
|
|
(695
|
)
|
|
|
942
|
|
|
|
(1,637
|
)
|
|
|
>100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
106,129
|
|
|
|
92,613
|
|
|
|
13,516
|
|
|
|
14.6
|
|
Discontinued operations
|
|
|
6,004
|
|
|
|
71,539
|
|
|
|
(65,535
|
)
|
|
|
(91.6
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
112,133
|
|
|
|
164,152
|
|
|
|
(52,019
|
)
|
|
|
(31.7
|
)
|
Net income attributable to noncontrolling interest
|
|
|
1,447
|
|
|
|
1,543
|
|
|
|
(96
|
)
|
|
|
(6.2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
110,686
|
|
|
$
|
162,609
|
|
|
$
|
(51,923
|
)
|
|
|
(31.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI Triple-Net Leased Properties
The increase in our NOI for the six months ended June 30, 2010 over the same period in 2009
primarily reflects $3.1 million of additional rent resulting from the annual escalators in the rent
paid under the Kindred Master Leases effective May 1, 2010 and various other escalations in the
rent paid on our other existing properties.
38
NOI Senior Living Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
NOI Senior Living Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
218,373
|
|
|
$
|
206,348
|
|
|
$
|
12,025
|
|
|
|
5.8
|
%
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
20
|
|
|
|
10
|
|
|
|
10
|
|
|
|
100.0
|
|
Property-level operating expenses
|
|
|
145,736
|
|
|
|
141,996
|
|
|
|
3,740
|
|
|
|
2.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI
|
|
$
|
72,617
|
|
|
$
|
64,342
|
|
|
$
|
8,275
|
|
|
|
12.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The increase in revenues during the six months ended June 30, 2010 over the same period in
2009 is attributed primarily to a decrease in the average Canadian dollar exchange rate, which had
a favorable impact of $5.8 million in 2010, higher occupancy rates and higher average daily rates
in our communities. Average resident occupancy rates related to our senior living operations managed by
third parties were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Communities
|
|
|
Average Resident Occupancy
|
|
|
|
at June 30,
|
|
|
For the Six Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Stabilized Communities
|
|
|
80
|
|
|
|
78
|
|
|
|
88.4
|
%
|
|
|
88.1
|
%
|
Lease-Up Communities
|
|
|
2
|
|
|
|
1
|
|
|
|
85.8
|
%
|
|
|
65.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
82
|
|
|
|
79
|
|
|
|
88.3
|
%
|
|
|
87.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same-Store Stabilized Communities
|
|
|
78
|
|
|
|
78
|
|
|
|
88.4
|
%
|
|
|
88.1
|
%
|
The increase in property-level operating expenses for the six months ended June 30, 2010 over
the same period in 2009 primarily reflects a decrease in the average Canadian dollar exchange rate,
which had an unfavorable impact of $3.9 million in 2010 and increases in labor and marketing costs,
partially offset by the receipt of $3 million for expense overages at our Sunrise-managed
communities and a decrease in utility costs in the first six months of 2010.
NOI All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
NOI All Other:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental income
|
|
$
|
24,429
|
|
|
$
|
16,691
|
|
|
$
|
7,738
|
|
|
|
46.4
|
%
|
Other revenue
|
|
|
7,389
|
|
|
|
6,840
|
|
|
|
549
|
|
|
|
8.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
31,818
|
|
|
|
23,531
|
|
|
|
8,287
|
|
|
|
35.2
|
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
67
|
|
|
|
226
|
|
|
|
(159
|
)
|
|
|
(70.4
|
)
|
Property-level operating expenses
|
|
|
8,326
|
|
|
|
6,036
|
|
|
|
2,290
|
|
|
|
37.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI
|
|
$
|
23,425
|
|
|
$
|
17,269
|
|
|
$
|
6,156
|
|
|
|
35.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
The increase in all other revenues during the second quarter of 2010 over the same period in
2009 is attributed primarily to $7.5 million of additional rent relating to MOBs acquired during
2009 and a $0.7 million increase in income from loans and investments due primarily to interest
earned on the investments we made during 2009. Average occupancy rates related to our MOBs were as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average Occupancy
|
|
|
|
Number
of Properties at June 30,
|
|
|
For the Six Months Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Stabilized MOBs
|
|
|
22
|
|
|
|
19
|
|
|
|
94.9
|
%
|
|
|
94.1
|
%
|
Lease-Up MOBs
|
|
|
4
|
|
|
|
3
|
|
|
|
77.5
|
%
|
|
|
64.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
26
|
|
|
|
22
|
|
|
|
91.5
|
%
|
|
|
89.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same-Store Stabilized MOBs
|
|
|
18
|
|
|
|
18
|
|
|
|
93.9
|
%
|
|
|
94.1
|
%
|
The change in property-level operating expenses during the six months ended June 30, 2010 over
the same period in 2009 primarily reflects increased expenses related to acquisitions that occurred
during 2009.
Interest Expense
Total interest expense, including interest allocated to discontinued operations of $0.3
million and $1.5 million for the six months ended June 30, 2010 and 2009, respectively, decreased
$2.8 million during the six months ended June 30, 2010 over the same period in 2009, primarily due
to a $9.7 million reduction in interest from lower loan balances, partially offset by a $5.6
million increase in interest from higher effective interest rates. Interest expense includes $4.5
million and $3.4 million of amortized deferred financing fees for the six months ended June 30,
2010 and 2009, respectively. Our effective interest rate increased to 6.6% for the six months
ended June 30, 2010, from 6.1% for the six months ended June 30, 2009 due to the higher outstanding
balances on our revolving credit facilities maintained during the first half of 2009 at lower
rates. A decrease in the average Canadian dollar exchange rate had an
unfavorable impact on interest expense of $0.5 million for the six months ended June 30, 2010,
compared to the same period in 2009.
Depreciation and Amortization
Depreciation and amortization expense increased primarily due to properties we acquired or
developed during the period from July 1, 2009 through June 30, 2010.
Loss on Extinguishment of Debt
Loss on extinguishment of debt for the six months ended June 30, 2010 relates primarily to our
redemption of all $142.7 million principal amount outstanding of our 7
1
/
8
% senior notes due 2015, at
a redemption price equal to 103.56% of par, plus accrued and unpaid interest to the redemption
date, pursuant to the call option contained in the indenture governing the notes. Loss on
extinguishment of debt for the same period in 2009 relates primarily to our cash tender offers for
our outstanding senior notes completed in May 2009.
Merger-Related Expenses and Deal Costs
Merger-related expenses and deal costs consisted of expenses relating to our favorable $101.6
million jury verdict against HCP arising out of our Sunrise REIT acquisition and deal costs
required by GAAP to be expensed rather than capitalized into the asset value, which include certain
fees and expenses incurred to acquire Lillibridge in 2010 and other deal costs for unconsummated
transactions.
40
Income Tax Expense/Benefit
Income tax expense/benefit before noncontrolling interest represents amounts related to our
taxable REIT subsidiaries as a result of the Sunrise REIT acquisition. The change from an income
tax benefit in 2009 to an income tax expense in 2010 is primarily due to increased NOI at our
seniors housing communities managed by Sunrise. Excluding income taxes related to noncontrolling
interest, we had net tax benefit in both periods. See Note 9Income Taxes of the Notes to
Consolidated Financial Statements included in Item 1 of this Quarterly Report on Form 10-Q.
Discontinued Operations
Discontinued operations for the six months ended June 30, 2010 include a $5.0 million net gain
on the sale of five assets sold during the six months ended June 30, 2010 and a lease termination
fee of $0.2 million. Discontinued operations for the same period in 2009 include a gain on sale of
assets of $66.9 million and a lease termination fee of $2.4 million related to thirteen assets sold
during the six months ended June 30, 2009. See Note 4Dispositions of the Notes to Consolidated
Financial Statements included in Item 1 of this Quarterly Report on Form 10-Q.
Net Income Attributable to Noncontrolling Interest
Net income attributable to noncontrolling interest, net of tax primarily represents Sunrises
share of net income from its ownership percentage in 58 of our seniors housing communities.
Non-GAAP Financial Measures
We believe that net income, as defined by GAAP, is the most appropriate earnings measurement.
However, we consider other non-GAAP financial measures to be useful supplemental measures of our
operating performance. A non-GAAP financial measure is generally defined as one that purports to
measure historical or future financial performance, financial position or cash flows, but excludes
or includes amounts that would not be so adjusted in the most comparable GAAP measure. Set forth
below are descriptions of the non-GAAP financial measures we consider relevant to our business and
useful to investors, as well as reconciliations of these measures to our most directly comparable
GAAP financial measure.
Our non-GAAP financial measures presented herein are not necessarily comparable to those
presented by other real estate companies due to the fact that not all real estate companies use the
same definitions. These measures should not be considered as alternatives to net income
(determined in accordance with GAAP) as indicators of our financial performance or as alternatives
to cash flow from operating activities (determined in accordance with GAAP) as measures of our
liquidity, nor are these measures necessarily indicative of sufficient cash flow to fund all of our
needs. We believe that in order to facilitate a clear understanding of our consolidated historical
operating results, these measures should be examined in conjunction with net income as presented in
our Consolidated Financial Statements and data included elsewhere in this Quarterly Report on Form
10-Q.
Funds From Operations and Normalized Funds From Operations and Funds Available for Distribution
Historical cost accounting for real estate assets implicitly assumes that the value of real
estate assets diminishes predictably over time. Since real estate values, instead, have
historically risen or fallen with market conditions, many industry investors have considered
presentations of operating results for real estate companies that use historical cost accounting to
be insufficient by themselves. To overcome this problem, we consider Funds From Operations (FFO)
and normalized FFO and Funds Available for Distribution (FAD) appropriate measures of performance
of an equity REIT. We believe that these measures of operating
performance may be used by investors to measure and compare operating performance between periods. We use the National Association of Real Estate Investment Trusts (NAREIT)
definition of FFO. NAREIT defines FFO as net income (computed in accordance with GAAP), excluding
gains (or losses) from sales of real estate property, plus real estate depreciation and
amortization, and after adjustments for unconsolidated partnerships and joint ventures. We define
normalized FFO as FFO excluding the following items (which may be recurring in nature): (a) gains
and losses on the sales of assets;
(b) merger-related costs and expenses and deal costs and expenses, including expenses relating to our lawsuit against HCP; (c)
the impact of any expenses related to asset impairment and valuation allowances, the write-off of
unamortized deferred financing fees, or additional costs, expenses, discounts or premiums incurred
as a result of early debt retirement or payment of our debt; and
(d) the non-cash effect of income tax benefits/expenses. Normalized FAD represents normalized FFO
excluding straight-line rental adjustments and routine capital expenditures. Routine capital
expenditures represent improvements or betterments to real estate
properties that extend or increase the useful life of the asset and
are required to
continue to generate current revenues and to maintain the value of the property subsequent to acquisition.
Routine capital expenditures exclude the noncontrolling interest share for joint venture
properties. As many investors are interested in those capital expenditures made by a company that
are not revenue enhancing in nature, we adjust our normalized FFO for routine capital expenditures
to arrive at normalized FAD.
41
Our FFO and normalized FFO and FAD for the three and six months ended June 30, 2010 and 2009
are summarized in the following table. The increase in our FFO for the three and six months ended
June 30, 2010 over the prior year is primarily due to rental increases from our triple-net leased
portfolio and higher NOI at our senior living and MOB operating portfolios, including the receipt
of $3 million for expense overages at our Sunrise-managed communities in 2010, and lower interest
expense during the six months ended June 30, 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common stockholders
|
|
$
|
58,067
|
|
|
$
|
88,381
|
|
|
$
|
110,686
|
|
|
$
|
162,609
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Real estate depreciation and amortization
|
|
|
49,932
|
|
|
|
48,472
|
|
|
|
102,179
|
|
|
|
97,800
|
|
Real estate depreciation related to noncontrolling interest
|
|
|
(1,680
|
)
|
|
|
(1,496
|
)
|
|
|
(3,406
|
)
|
|
|
(3,116
|
)
|
Discontinued operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of real estate assets
|
|
|
(5,041
|
)
|
|
|
(39,020
|
)
|
|
|
(5,225
|
)
|
|
|
(66,891
|
)
|
Depreciation on real estate assets
|
|
|
|
|
|
|
266
|
|
|
|
61
|
|
|
|
676
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FFO
|
|
|
101,278
|
|
|
|
96,603
|
|
|
|
204,295
|
|
|
|
191,078
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax benefit
|
|
|
(150
|
)
|
|
|
(936
|
)
|
|
|
(283
|
)
|
|
|
(1,873
|
)
|
Loss on extinguishment of debt
|
|
|
6,549
|
|
|
|
5,975
|
|
|
|
6,549
|
|
|
|
6,080
|
|
Merger-related expenses and deal costs
|
|
|
4,207
|
|
|
|
3,502
|
|
|
|
6,526
|
|
|
|
5,556
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Normalized FFO
|
|
|
111,884
|
|
|
|
105,144
|
|
|
|
217,087
|
|
|
|
200,841
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Straight-lining of rental income
|
|
|
(2,526
|
)
|
|
|
(3,052
|
)
|
|
|
(4,975
|
)
|
|
|
(5,990
|
)
|
Routine capital expenditures
|
|
|
(1,288
|
)
|
|
|
(632
|
)
|
|
|
(1,885
|
)
|
|
|
(1,776
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Normalized FAD
|
|
$
|
108,070
|
|
|
$
|
101,460
|
|
|
$
|
210,227
|
|
|
$
|
193,075
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
42
Adjusted EBITDA
We define Adjusted EBITDA as earnings before interest, taxes, depreciation and amortization
(including non-cash stock-based compensation), excluding merger-related expenses and deal costs and
gains and losses on real estate disposals. We believe that Adjusted EBITDA is an important
supplemental measure to net income and cash flow from operating activities because it provides
additional information to assess and evaluate the performance of our operations. We also consider
it to be a profitability measure which indicates our ability to service debt. The following is a
reconciliation of Adjusted EBITDA to net income (including amounts in discontinued operations) for
the three and six months ended June 30, 2010 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
58,965
|
|
|
$
|
89,183
|
|
|
$
|
112,133
|
|
|
$
|
164,152
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
|
44,172
|
|
|
|
44,646
|
|
|
|
88,631
|
|
|
|
91,455
|
|
Loss on extinguishment of debt
|
|
|
6,549
|
|
|
|
5,975
|
|
|
|
6,549
|
|
|
|
6,080
|
|
Taxes (including amounts in general, administrative and
professional fees)
|
|
|
657
|
|
|
|
(98
|
)
|
|
|
1,193
|
|
|
|
(343
|
)
|
Depreciation and amortization
|
|
|
50,185
|
|
|
|
48,909
|
|
|
|
102,722
|
|
|
|
98,817
|
|
Non-cash stock-based compensation expense
|
|
|
3,057
|
|
|
|
3,078
|
|
|
|
6,089
|
|
|
|
6,137
|
|
Merger-related expenses and deal costs
|
|
|
4,207
|
|
|
|
3,502
|
|
|
|
6,526
|
|
|
|
5,556
|
|
Gain on sale of real estate assets
|
|
|
(5,041
|
)
|
|
|
(39,020
|
)
|
|
|
(5,225
|
)
|
|
|
(66,891
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
|
$
|
162,751
|
|
|
$
|
156,175
|
|
|
$
|
318,618
|
|
|
$
|
304,963
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI
We define NOI as total revenues, less interest and other income and property-level operating
expenses. We believe that NOI is an important supplemental measure to net income and cash flow from
operating activities because it allows us to evaluate the operating performance of our properties
at the property level on an unleveraged basis. The following is a reconciliation of NOI for the
three and six months ended June 30, 2010 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months
|
|
|
For the Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
243,978
|
|
|
$
|
231,452
|
|
|
$
|
485,523
|
|
|
$
|
460,356
|
|
Less:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and other income
|
|
|
122
|
|
|
|
108
|
|
|
|
385
|
|
|
|
394
|
|
Property-level operating expenses
|
|
|
75,183
|
|
|
|
72,564
|
|
|
|
154,062
|
|
|
|
148,032
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI (excluding amounts in discontinued operations)
|
|
|
168,673
|
|
|
|
158,780
|
|
|
|
331,076
|
|
|
|
311,930
|
|
Discontinued operations
|
|
|
405
|
|
|
|
1,972
|
|
|
|
901
|
|
|
|
4,432
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOI (including amounts in discontinued operations)
|
|
$
|
169,078
|
|
|
$
|
160,752
|
|
|
$
|
331,977
|
|
|
$
|
316,362
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43
Liquidity and Capital Resources
During the six months ended June 30, 2010, our principal sources of liquidity were cash flows
from operations, proceeds from dispositions, borrowings under our unsecured revolving credit
facilities and cash on hand. On July 1, 2010, we funded the Lillibridge transaction with a
combination of cash on hand, borrowings under our unsecured revolving credit facilities and assumed
secured mortgage financing. For the remainder of 2010, our principal liquidity needs are to: (i)
fund
normal operating expenses; (ii) meet our debt service requirements; (iii) repay maturing
mortgage debt; (iv) fund capital expenditures for our senior living operations and our MOBs; (v)
fund acquisitions, investments and/or commitments; and
(vi) make distributions to our stockholders, as required for us to continue to qualify as a REIT.
We believe that these needs will be satisfied by cash flows from operations, cash on hand, debt
financings, proceeds from sales of assets and borrowings under our unsecured revolving credit
facilities. However, if these sources of capital are not available and/or if we make significant
acquisitions and investments, we may be required to obtain funding from additional borrowings,
assume debt from the seller, dispose of assets (in whole or in part through joint venture
arrangements with third parties) and/or issue secured or unsecured long-term debt or other
securities.
As of June 30, 2010, we had a total of $27.8 million of unrestricted cash and cash
equivalents, consisting primarily of operating cash and cash
related to our senior living operations that is deposited and held in property-level accounts.
Funds maintained in the property-level accounts are used primarily for the payment of
property-level expenses and certain capital expenditures. A portion of the cash maintained in these
property-level accounts is distributed to us monthly. At June 30, 2010, we also had escrow deposits
and restricted cash of $43.5 million, and unused credit availability of $872.7 million under our
unsecured revolving credit facilities.
Unsecured Revolving Credit Facilities
At June 30, 2010, our aggregate borrowing capacity under the unsecured revolving credit
facilities was $1.0 billion, all of which matures on April 26, 2012. Borrowings under our
unsecured revolving credit facilities bear interest at a fluctuating rate per annum (based on U.S.
or Canadian LIBOR, the Canadian Bankers Acceptance rate, or the U.S. or Canadian Prime rate), plus
an applicable percentage based on our consolidated leverage. At June 30, 2010, the applicable
percentage was 2.80%. Our unsecured revolving credit facilities have a 20 basis point facility
fee. As of July 27, 2010, we had $352.7 million outstanding under our unsecured revolving credit
facilities (including outstanding letters of credit of $7.8 million) and $647.3 million of availability.
Senior Notes
On June 1, 2010, we repaid in full, at par, $1.4 million principal amount outstanding of our
senior notes due 2010 upon maturity. In June 2010, we also exercised our option to redeem all
$142.7 million principal amount outstanding of our 7
1
/
8
% senior notes due 2015, at a redemption price
equal to 103.56% of par, plus accrued and unpaid interest to the redemption date, pursuant to the
call option contained in the indenture governing the notes. As a
result, we paid a total of $147.8 million,
plus accrued and unpaid interest, and recognized a net loss on extinguishment of debt of $6.4
million during the second quarter.
Mortgages
In June 2010, we repaid
$49.8 million of mortgage loans on two of our Sunrise-managed
properties in which we had 80% ownership interests. In connection with our payment of Sunrises share ($9.9 million) of those mortgage
loans, we acquired Sunrises 20% noncontrolling interests in the properties.
Cash Flows
The following is a summary of our sources and uses of cash flows for the six months ended June
30, 2010 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at beginning of period
|
|
$
|
107,397
|
|
|
$
|
176,812
|
|
|
$
|
(69,415
|
)
|
|
|
(39.3
|
)%
|
Net cash provided by operating activities
|
|
|
207,717
|
|
|
|
195,142
|
|
|
|
12,575
|
|
|
|
6.4
|
|
Net cash (used in) provided by investing activities
|
|
|
(21,437
|
)
|
|
|
33,556
|
|
|
|
(54,993
|
)
|
|
|
>100
|
|
Net cash used in financing activities
|
|
|
(265,835
|
)
|
|
|
(359,126
|
)
|
|
|
93,291
|
|
|
|
(26.0
|
)
|
Effect of foreign currency translation on cash and
cash equivalents
|
|
|
(48
|
)
|
|
|
139
|
|
|
|
(187
|
)
|
|
|
>100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
27,794
|
|
|
$
|
46,523
|
|
|
$
|
(18,729
|
)
|
|
|
(40.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
44
Cash Flows from Operating Activities
The increase in our net cash provided by operating activities for the six months ended June
30, 2010 was due primarily to higher FFO during that period as a result of rental increases from
our triple-net leased portfolio, higher NOI at our senior living and MOB operating portfolios,
including the receipt of $3 million for expense overages at our Sunrise-managed communities, and
lower interest expense in 2010.
Cash Flows from Investing Activities
Investing activities during the six months ended June 30, 2010 and 2009 consisted primarily of
our investments in real estate and earnest money deposits ($22.9 million and $19.4 million in 2010
and 2009, respectively), investments in loans receivable ($15.8 million and $7.4 million in 2010
and 2009, respectively) and capital expenditures ($7.1 million and $4.0 million in 2010 and 2009,
respectively), offset by proceeds from loans receivable ($1.3 million and $7.7 million in 2010 and
2009, respectively) and proceeds from real estate disposals ($23.0 million and $56.6 million in
2010 and 2009, respectively).
Cash Flows from Financing Activities
Net cash used in financing activities for the six months ended June 30, 2010 consisted
primarily of $167.8 million of cash dividend payments to common stockholders, $149.1 million of
senior note repayments, $66.0 million of aggregate principal payments on mortgage obligations, $4.3
million of distributions to noncontrolling interests and $1.8 million of payments for deferred
financing costs, offset by $117.3 million of proceeds from borrowings under our unsecured revolving
credit facilities.
Net cash used in financing activities for the six months ended June 30, 2009 consisted
primarily of $289.9 million of payments made on our unsecured revolving credit facilities, $153.8
million of cash dividend payments to common stockholders, $411.5 million of senior note purchases
and repayments, $91.5 million of aggregate principal payments on mortgage obligations and $13.4
million of payments for deferred financing costs, offset by $301.1 million of proceeds from the
issuance of debt and $299.2 million from the issuance of common stock.
Capital Expenditures
Our tenants generally bear the responsibility to maintain and improve our triple-net leased
properties. Accordingly, we do not expect to incur any major capital expenditures in connection
with these properties. After the terms of the triple-net leases expire, or in the event that the
tenants are unable or unwilling to meet their obligations under those leases, we anticipate funding
any capital expenditures for which we may become responsible by cash flows from operations or
through additional borrowings. With respect to our MOBs and our senior living communities managed
by independent third parties pursuant to management agreements, we expect that capital expenditures
will be funded by the cash flows from the properties or through additional borrowings. To the
extent that unanticipated expenditures or significant borrowings are required, our liquidity may be
affected adversely. Our ability to borrow funds may be restricted in certain circumstances by the
terms of our unsecured revolving credit facilities and the indentures governing our outstanding
senior notes. Our ability to borrow may also be limited by our lenders ability and willingness to
fund, in whole or in part, borrowing requests under our unsecured revolving credit facilities.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The following discussion of our exposure to various market risks contains forward-looking
statements that involve risks and uncertainties. These projected results have been prepared
utilizing certain assumptions considered reasonable in light of information currently available to
us. Nevertheless, because of the inherent unpredictability of interest rates as well as other
factors, actual results could differ materially from those projected in such forward-looking
information.
We are exposed to market risk for changes in interest rates on borrowings under our unsecured
revolving credit facilities, certain of our mortgage loans that are floating rate obligations and
mortgage loans receivable. These market risks result primarily from changes in U.S. or Canadian
LIBOR rates, the Canadian Bankers Acceptance rate or the U.S. or Canadian Prime rates. We
continuously monitor our level of floating rate debt with respect to total debt and other factors,
including our assessment of the current and future economic environment.
45
Interest rate fluctuations generally do not affect our fixed rate debt obligations until such
instruments mature. However, changes in interest rates will affect the fair value of our fixed
rate instruments. If interest rates have risen at the time our fixed rate debt matures or at the
time we refinance such debt, our future earnings and cash flows could be adversely
affected by the additional cost of borrowings. Conversely, lower interest rates at the time
our debt matures or at the time of refinancing may lower our overall borrowing costs.
To highlight the sensitivity of our fixed rate debt to changes in interest rates, the
following summary shows the effects of a hypothetical instantaneous change of 100 basis points
(BPS) in interest rates as of June 30, 2010 and December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
As of
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(In thousands)
|
|
|
|
Gross book value
|
|
$
|
2,316,600
|
|
|
$
|
2,477,225
|
|
Fair value
(1)
|
|
|
2,472,119
|
|
|
|
2,572,472
|
|
Fair value reflecting change in interest rates:
(1)
|
|
|
|
|
|
|
|
|
-100 BPS
|
|
|
2,568,026
|
|
|
|
2,681,982
|
|
+100 BPS
|
|
|
2,377,046
|
|
|
|
2,469,655
|
|
|
|
|
(1)
|
|
The change in fair value of fixed rate debt was due primarily to overall changes in interest
rates and debt repayments.
|
46
The table below sets forth certain information with respect to our debt, excluding premiums
and discounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
As of
|
|
|
As of
|
|
|
|
June 30,
|
|
|
December 31,
|
|
|
June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2009
|
|
|
|
(Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes
|
|
$
|
1,009,087
|
|
|
$
|
1,153,131
|
|
|
$
|
1,153,510
|
|
Mortgage loans and other
|
|
|
1,307,513
|
|
|
|
1,324,094
|
|
|
|
1,278,214
|
|
Variable rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Unsecured revolving credit facilities
|
|
|
126,269
|
|
|
|
8,466
|
|
|
|
10,402
|
|
Mortgage loans
|
|
|
166,774
|
|
|
|
215,970
|
|
|
|
208,614
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
2,609,643
|
|
|
$
|
2,701,661
|
|
|
$
|
2,650,740
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percent of total debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes
|
|
|
38.7
|
%
|
|
|
42.7
|
%
|
|
|
43.5
|
%
|
Mortgage loans and other
|
|
|
50.1
|
%
|
|
|
49.0
|
%
|
|
|
48.2
|
%
|
Variable rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Unsecured revolving credit facilities
|
|
|
4.8
|
%
|
|
|
0.3
|
%
|
|
|
0.4
|
%
|
Mortgage loans
|
|
|
6.4
|
%
|
|
|
8.0
|
%
|
|
|
7.9
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average interest rate at end of period:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior notes
|
|
|
6.2
|
%
|
|
|
6.3
|
%
|
|
|
6.3
|
%
|
Mortgage loans and other
|
|
|
6.3
|
%
|
|
|
6.3
|
%
|
|
|
6.4
|
%
|
Variable rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
Unsecured revolving credit facilities
|
|
|
3.2
|
%
|
|
|
3.1
|
%
|
|
|
3.2
|
%
|
Mortgage loans
|
|
|
1.7
|
%
|
|
|
2.0
|
%
|
|
|
1.1
|
%
|
Total
|
|
|
5.8
|
%
|
|
|
6.0
|
%
|
|
|
5.9
|
%
|
The increase in our outstanding variable rate debt from December 31, 2009 is primarily
attributable to additional borrowings under our unsecured revolving credit facilities, partially
offset by mortgage repayments. Pursuant to the terms of certain leases with one of our tenants, if
interest rates increase on certain debt that we have totaling $80.0 million as of June 30, 2010,
our tenant is required to pay us additional rent (on a dollar-for-dollar basis) in an amount equal
to the increase in interest expense resulting from the increased interest rates. Therefore, the
increase in interest expense related to this debt is equally offset by an increase in additional
rent due to us from the tenant. Assuming a one percentage point increase in the interest rate
related to the variable rate debt, and assuming no change in the outstanding balance as of June 30,
2010, interest expense for 2010 would increase by approximately $2.7 million, or $0.02 per common
share on a diluted basis. The fair value of our fixed and variable rate debt is based on current
interest rates at which we could obtain similar borrowings.
We have investments in marketable debt securities on which we earn interest on a fixed rate
basis. We record these investments as available-for-sale at fair value, with unrealized
gains and losses recorded as a component of stockholders equity. Interest rate fluctuations and
market conditions will cause the fair value of these investments to change. As of June 30,
2010 and December 31, 2009, the fair value of our marketable debt securities, which had an
original cost of $58.7 million, was $64.8 million and $65.0 million, respectively.
As of June 30, 2010, the fair value of our loans receivable was $142.0 million, based on our
estimates of currently prevailing rates for comparable loans.
47
We are subject to fluctuations in U.S. and Canadian exchange rates which may, from time to
time, have an impact on our financial condition and results of operations. Increases or decreases
in the value of the Canadian dollar will impact the
amount of net income we earn from our Canadian operations. Based on results for the six
months ended June 30, 2010, if the Canadian dollar exchange rate were to increase or decrease by
$0.10, our net income would decrease or increase, as applicable, by $0.4 million for the six-month
period. If we increase our international presence through investments in, and/or acquisitions or
development of, seniors housing and/or healthcare assets outside the United States, we may also
decide to transact additional business in currencies other than U.S. or Canadian dollars. Although
we may decide to pursue hedging alternatives (including additional borrowings in local currencies)
to protect against foreign currency fluctuations, we cannot assure you that any such fluctuations
will not have a Material Adverse Effect on us.
We may engage in hedging strategies to manage our exposure to market risks in the future,
depending on an analysis of the interest rate and foreign currency exchange rate environments and
the costs and risks of such strategies. We do not use derivative financial instruments for
speculative purposes.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
As required by Rules 13a-15(b) and 15d-15(b) of the Exchange Act, our management, with the
participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the
effectiveness of our disclosure controls and procedures as of June 30, 2010. Based on that
evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure
controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) were
effective as of June 30, 2010, at the reasonable assurance level.
Internal Control Over Financial Reporting
In January 2010, we implemented an Enterprise Resource Planning (ERP) system, which included
a new general ledger system. Various internal controls were modified due to the new ERP system.
We believe that the system has enhanced internal control over financial reporting. Other than the
implementation of the new ERP system and related changes in internal controls, during the first quarter of 2010, there were no
significant changes in our internal control over financial reporting (as defined in Rules 13a-15(f)
and 15d-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to
materially affect, our internal control over financial reporting.
During the second quarter of 2010, there were no changes in our internal control over
financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that have
materially affected, or are reasonably likely to materially affect, our internal control over
financial reporting.
48
PART IIOTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The information contained in Note 8Litigation of the Notes to Consolidated Financial
Statements included in Part I, Item 1 of this Quarterly Report on Form 10-Q is incorporated by
reference into this Item 1. Except as set forth therein, there have been no material developments
in the legal proceedings reported in our Annual Report on Form 10-K for the year ended December 31,
2009.
ITEM 1A. RISK FACTORS
The following risk factors reflect certain modifications of, or additions to, the risk factors
continued in our Annual Report on Form 10-K for the year ended December 31, 2009 as a result of our
acquisition of Lillibridge.
The hospitals on whose campuses our MOBs are located and their affiliated health systems could fail
to remain competitive or financially viable, which could adversely impact their ability to attract
physicians and physician groups to our MOBs.
Our MOB operations depend on the viability of the hospitals on or near whose campuses our MOBs
are located and their affiliated health systems in order to attract physicians and other
healthcare-related clients. The viability of these hospitals, in turn, depends on factors such as
the quality and mix of healthcare services provided, competition, demographic trends in the
surrounding community, market position and growth potential, as well as the ability of their
affiliated health systems to provide economies of scale and access to capital. If a hospital on or
near whose campus one of our MOBs is located is unable to meet its financial obligations, and if an
affiliated health system is unable to support that hospital, the hospital may not be able to
compete successfully or it could be forced to close or relocate, which could adversely impact its
ability to attract physicians and other healthcare-related clients. Because we rely on our
proximity to and affiliations with these hospitals to create demand for space in our MOBs, their
inability to remain competitive or financially viable, or to attract physicians and physician
groups, could materially adversely affect our MOB operations and have a Material Adverse Effect on
us.
We may not be able to maintain or expand our relationships with our existing and future hospital
and health system clients.
The success of our MOB business depends, to a large extent, on our past, current and future
relationships with hospital and health system clients. We invest a significant amount of time to
develop these relationships, and they have helped us to secure acquisition and development
opportunities, as well as other advisory, property management and hospital project management
projects, with both new and existing clients. If any of our relationships with hospital or health
system clients deteriorates, or if a conflict of interest or non-compete arrangement prevents us
from expanding these relationships, our ability to secure new acquisition and development
opportunities or other advisory, property management and hospital project management projects could
be adversely impacted and our professional reputation within the industry could be damaged.
Our MOB development projects, including development projects undertaken on a fee-for-service basis
or through our joint ventures, may not yield anticipated returns.
A key component of our MOB long-term growth strategy is exploring development opportunities,
and when appropriate, making investments in those projects. In deciding whether to make an
investment in a particular MOB development, we make certain assumptions regarding the expected
future performance of that property. These assumptions are subject to risks normally associated
with these projects, including, among others:
|
|
|
we may be unable to obtain financing for these projects on favorable terms or at
all;
|
|
|
|
we may not complete development projects on schedule or within budgeted amounts;
|
|
|
|
we may encounter delays or refusals in obtaining all necessary zoning, land use,
building, occupancy, environmental and other required governmental permits and
authorizations, or underestimate the costs necessary to bring the property up to market
standards;
|
49
|
|
|
development and construction delays may give tenants the right to terminate
preconstruction leases or cause us to incur additional costs;
|
|
|
|
volatility in the price of construction materials and labor may increase our
development costs;
|
|
|
|
hospitals or health systems may maintain significant decision-making authority with
respect to the development schedule;
|
|
|
|
one of our builders may fail to perform or satisfy the expectations of our clients
or prospective clients;
|
|
|
|
we may incorrectly forecast risks associated with development in new geographic
regions;
|
|
|
|
tenants may not lease space at the quantity or rental rate levels projected;
|
|
|
|
competition from other developments may lure away desirable tenants;
|
|
|
|
the demand for the development project may decrease prior to completion; and
|
|
|
|
lease rates and rents at newly developed properties may fluctuate depending on a
number of factors, including market and economic conditions.
|
If any of the foregoing risks occur, our MOB development projects, including development
projects undertaken on a fee-for-service basis or through our joint ventures, may not yield
anticipated returns, which could materially adversely affect our MOB operations and have a Material
Adverse Effect on us.
Our ownership of certain properties subject to ground lease, air rights or other restrictive
agreements exposes us to the loss of such properties upon breach or termination of such agreements
and limits our uses of these properties and restricts our ability to sell or otherwise transfer
such properties
.
We hold interests in certain of our MOB properties through leasehold interests in the land on
which the buildings are located, through leases of air rights for the space above the land on which
the buildings are located or through similar agreements, and we may acquire or develop additional
properties in the future that are subject to similar ground lease, air rights or other restrictive
agreements. Under these agreements, we are exposed to the possibility of losing our interests in
the property upon termination or an earlier breach by us. In addition, many of our ground lease,
air rights or other restrictive agreements impose significant limitations on our uses of the
subject properties and restrict our right to convey our interest in such agreements, which may
limit our ability to timely sell or exchange the properties and impair their value.
The amount and scope of insurance coverage provided by our policies and policies maintained by our
tenants, operators and managers may not adequately insure against losses.
We maintain and/or require in our existing leases and other agreements that our tenants,
operators and managers maintain all applicable lines of insurance on our properties and their
operations. Although we continually review the insurance maintained by us and our tenants,
operators and managers and believe the coverage provided to be customary for similarly situated
companies in our industry, we cannot assure you that in the future such insurance will be available
at a reasonable cost or that we or our tenants, operators and managers will be able to maintain
adequate levels of insurance coverage. We also cannot give any assurances as to the future
financial viability of our insurers or that the insurance coverage provided will fully cover all
losses on our properties upon the occurrence of a catastrophic event.
Should an uninsured loss or a loss in excess of insured limits occur, we could incur
substantial liability or lose all or a portion of the capital we have invested in a property, as
well as the anticipated future revenues from the property. In such an event, we might nevertheless
remain obligated for any mortgage debt or other financial obligations related to the property. We
cannot assure you that material uninsured losses, or losses in excess of insurance proceeds, will
not occur in the future.
50
As part of our MOB development business, we provide engineering, construction and
architectural services, where design, construction or systems failures may result in substantial
injury or damage to clients and/or third parties. These claims may arise in the normal course of
our development business, and may be asserted with respect to projects completed and/or past
occurrences. If any claim results in a loss, there can be no guarantee that our insurance coverage
would be
adequate to cover the loss in full. If we sustain losses in excess of our insurance coverage,
we may be required to make a payment for the difference and could lose both our investment in, and
anticipated profits and cash flows from, the affected MOB, which could have a Material Adverse
Effect on us.
We may be unable to reposition our properties on as favorable terms, or at all, if we have to
replace any of our tenants or operators, and we may be subject to delays, limitations and expenses
in repositioning our assets.
We cannot predict whether our tenants will renew existing leases upon the expiration of the
terms thereof. If the Kindred Master Leases, our leases with Brookdale Senior Living or any of our
other leases are not renewed, we would be required to reposition those properties with another
tenant or operator. In certain circumstances, we could also exercise our right to replace any
tenant or operator upon a default under the terms of the applicable lease. In case of non-renewal,
our tenants are required to continue to perform all obligations (including the payment of all
rental amounts) for any assets that are not renewed until expiration of the then current lease
term. We generally have one year to arrange for the repositioning of non-renewed assets prior to
the expiration of the lease term. If we exercise our right to replace a tenant upon a default
under a lease, during any period that we are attempting to locate a suitable replacement tenant or
operator, there could be a decrease or cessation of rental payments on those properties. We cannot
assure you that we would be successful in identifying suitable replacements or entering into leases
with new tenants or operators on terms as favorable to us as our current leases, if at all. In
this event, we may be required to fund certain expenses and obligations (e.g., real estate taxes,
debt costs and maintenance expenses) to preserve the value and avoid the imposition of
liens on properties while they are being repositioned.
Our ability to reposition our properties with another suitable tenant or operator could be
significantly delayed or limited by various state licensing, receivership, CON or other laws, as
well as by the Medicare and Medicaid change-of-ownership rules. We could also incur substantial
additional expenses in connection with any licensing, receivership or change-of-ownership
proceedings. In the case of our MOBs, our ability to locate suitable replacement tenants could be
impacted by the specialized medical uses of those properties, and we may be required to spend
substantial amounts to adapt the MOB to other uses. These delays, limitations and expenses could
materially delay or impact our ability to reposition our properties, collect rent, obtain
possession of leased properties or otherwise to exercise remedies for tenant default and could have
a Material Adverse Effect on us.
51
ITEM 6. EXHIBITS
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
Description of Document
|
|
Location of Document
|
|
|
|
|
|
|
|
|
10.1
|
|
|
Employment Agreement dated as of June
22, 2010 between Ventas, Inc. and Todd
W. Lillibridge.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.2
|
|
|
Credit and Guaranty Agreement dated as
of April 26, 2006 among Ventas Realty,
Limited Partnership, as borrower,
Ventas, Inc. and the other guarantors
named therein, as guarantors, Bank of
America, N.A., as Administrative
Agent, Issuing Bank and Swingline
Lender, and the lenders identified
therein.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.3
|
|
|
Guaranty of Agreement Regarding Leases
dated as of November 7, 2006 by Senior
Care, Inc. in favor of Ventas Realty,
Limited Partnership.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.4
|
|
|
Amended and Restated Employment
Agreement dated as of December 28,
2006 between Ventas, Inc. and Debra A.
Cafaro.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
31.1
|
|
|
Certification of Debra A. Cafaro,
Chairman, President and Chief
Executive Officer, pursuant to Rule
13a-14(a) under the Securities
Exchange Act of 1934, as amended.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
31.2
|
|
|
Certification of Richard A.
Schweinhart, Executive Vice President
and Chief Financial Officer, pursuant
to Rule 13a-14(a) under the Securities
Exchange Act of 1934, as amended.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
32.1
|
|
|
Certification of Debra A. Cafaro,
Chairman, President and Chief
Executive Officer, pursuant to Rule
13a-14(b) under the Securities
Exchange Act of 1934, as amended, and
18 U.S.C. § 1350.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
32.2
|
|
|
Certification of Richard A.
Schweinhart, Executive Vice President
and Chief Financial Officer, pursuant
to Rule 13a-14(b) under the Securities
Exchange Act of 1934, as amended, and
18 U.S.C. § 1350.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
101
|
|
|
Interactive Data File.
|
|
Filed herewith.
|
52
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: July 30, 2010
|
|
|
|
|
|
VENTAS, INC.
|
|
|
By:
|
/s/
Debra A. Cafaro
|
|
|
|
Debra A. Cafaro
|
|
|
|
Chairman, President and
Chief Executive Officer
|
|
|
|
|
|
By:
|
/s/
Richard A. Schweinhart
|
|
|
|
Richard A. Schweinhart
|
|
|
|
Executive Vice President and
Chief Financial Officer
|
|
53
EXHIBIT INDEX
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
Description of Document
|
|
Location of Document
|
|
|
|
|
|
|
|
|
10.1
|
|
|
Employment Agreement dated as of June
22, 2010 between Ventas, Inc. and Todd
W. Lillibridge.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.2
|
|
|
Credit and Guaranty Agreement dated as
of April 26, 2006 among Ventas Realty,
Limited Partnership, as borrower,
Ventas, Inc. and the other guarantors
named therein, as guarantors, Bank of
America, N.A., as Administrative Agent,
Issuing Bank and Swingline Lender, and
the lenders identified therein.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.3
|
|
|
Guaranty of Agreement Regarding Leases
dated as of November 7, 2006 by Senior
Care, Inc. in favor of Ventas Realty,
Limited Partnership.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
10.4
|
|
|
Amended and Restated Employment
Agreement dated as of December 28, 2006
between Ventas, Inc. and Debra A.
Cafaro.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
31.1
|
|
|
Certification of Debra A. Cafaro,
Chairman, President and Chief Executive
Officer, pursuant to Rule 13a-14(a)
under the Securities Exchange Act of
1934, as amended.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
31.2
|
|
|
Certification of Richard A. Schweinhart,
Executive Vice President and Chief
Financial Officer, pursuant to Rule
13a-14(a) under the Securities Exchange
Act of 1934, as amended.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
32.1
|
|
|
Certification of Debra A. Cafaro,
Chairman, President and Chief Executive
Officer, pursuant to Rule 13a-14(b)
under the Securities Exchange Act of
1934, as amended, and 18 U.S.C. § 1350.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
32.2
|
|
|
Certification of Richard A. Schweinhart,
Executive Vice President and Chief
Financial Officer, pursuant to Rule
13a-14(b) under the Securities Exchange
Act of 1934, as amended, and 18 U.S.C. §
1350.
|
|
Filed herewith.
|
|
|
|
|
|
|
|
|
101
|
|
|
Interactive Data File.
|
|
Filed herewith.
|
54
Exhibit 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT
(the
Agreement
) made as of the 22
nd
day of June, 2010
(the
Effective Date
), by and between
Ventas, Inc
., a Delaware corporation (the
Company
) and
Todd W. Lillibridge
(the
Executive
).
W I T N E S S E T H T H A T
WHEREAS
, the Executive is currently employed by Lillibridge Healthcare Services, Inc.
(
Lillibridge
); and
WHEREAS
, concurrently herewith, the Company has entered into that certain Master Transaction
Agreement dated as of June 22, 2010 by and among the Company, the other Buyer Parties identified
therein, the Seller Parties identified therein and the Shareholders identified therein (the
Transaction Agreement
), pursuant to which each such Buyer Party, Seller Party and Shareholder has
agreed to and shall consummate, and, to the extent applicable, shall cause each of its controlled
affiliates to consummate, on or before the
Closing
(as defined therein), their respective
obligations pursuant to and pertaining to the transactions described therein (the
Transactions
)
including the acquisition of each of Lillibridge Healthcare Real Estate Trust (
LHRET
),
Lillibridge Healthcare Properties Trust and LHP-B Trust by the Company through the merger of an
Affiliate of the Company with and into each such entity (such acquisition, the
Acquisition
); and
WHEREAS
, as of the Closing, the Executive desires to be employed by the Company and the
Company desires to hire the Executive subject to, and strictly conditioned upon the occurrence of
the Closing; and
WHEREAS
, the Board of Directors of the Company (the
Board
), or in the alternative, the
Companys Executive Compensation Committee (the
Committee
), has determined that it is in the best
interests of the Company to enter into this Agreement; and
WHEREAS
, the Company has provided good and valuable consideration for the promises and
agreements of the Executive contained herein,
NOW, THEREFORE
, in consideration of the promises and the respective covenants and agreements
contained herein, and intending to be legally bound hereby, the Company and the Executive agree as
follows:
1.
Employment
. The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to be employed by the Company, on the terms and conditions herein set forth. Subject
to the termination provisions hereinafter provided, the term of the Executives employment under
this Agreement (the
Term
) shall begin on the date on which the Closing occurs (the
Commencement
Date
) and shall end on the fifth (5
th
) anniversary of the Commencement Date (the
Expiration Date
). The parties agree and acknowledge that if the Closing does not occur as
contemplated in the Transaction Agreement by December 31, 2010, that this Agreement shall be null
and void ab initio; provided, however, that notwithstanding the foregoing, the provisions of
Section 9
and
Section 10
shall survive and apply to the Executive upon execution of this Agreement,
regardless of the occurrence of the Closing.
2.
Duties
. The Company shall employ the Executive during the Term as its Executive
Vice President MPO and as CEO of Lillibridge and, subject to the oversight, control and direction
of the Board and the CEO (defined below), the Executive shall serve as the principal executive
officer of the Companys Medical Property Operations (
MPO
). The term
Medical Property
Operations
means the activities of the Company and its affiliates and their respective
subsidiaries with respect to the acquisition, disposition, development, advising and management of
Medical Properties (defined below), including the Companys current MPO activities and the
oversight of the Companys existing MPO relationships, all to the extent mutually agreed to be in
the best interest of the Company and in compliance with the Companys existing contractual
relationships, all as determined on a case-by-case basis. In addition to the above, the Executive
and the Company shall jointly determine from time to time the Executives role and responsibilities
in connection with the acquisition, disposition, development, advising and management of inpatient
hospital properties of the Company and its affiliates and subsidiaries covered by long-term single
tenant leases with not-for-profit organizations. The term
Medical Properties
means medical
office and outpatient healthcare properties, including medical office and outpatient healthcare
properties covered by long-term single tenant leases. For the avoidance of doubt, Medical
Properties shall not include for-profit hospital properties with either whole or partial inpatient
operations. The Executive shall report to the Companys Chief Executive Officer (the
CEO
). The
Executive shall have duties and responsibilities consistent with similarly situated senior officers
of MPO divisions of other publicly-traded healthcare real estate investment trusts, at all times
within the context of the Companys organizational goals, budgets, polices, controls and processes
and such other duties as determined by the CEO from time to time. The Executive shall be a member
of the Management Capital Committee. The Executive shall perform such other duties (including
presentations at industry conferences) as are assigned to him and are consistent with his title and
other duties. The Executives duties will be performed at and from the Companys offices in
Chicago, Illinois; subject, however, to such travel to the Companys corporate offices in
Louisville, Kentucky as may be reasonably required for the performance of the Executives duties or
as may be reasonably requested by the Company.
3.
Extent of Services
. Subject to the direction and control of the Board and the CEO,
the Executive shall have the power and authority commensurate with his executive status and
necessary to perform his duties hereunder. The Company will provide the Executive the resources
necessary to perform his duties hereunder, as determined by the Company in its sole discretion.
During the Term, the Executive shall devote his entire working time, attention, labor, skill and
energies in and to the business of the Company, and shall not, without the prior written consent of
the Company, be actively engaged in any other business activity (including arranging or
establishing new businesses), whether or not such business activity is pursued for gain, profit or
other pecuniary advantage;
provided
,
however
, that, the Executive will be entitled
to be a member of, participate in, and serve on the boards of professional organizations and
charitable organizations to the extent that such participation or service does not interfere with
the Executives duties under this Agreement;
provided
further
, that serving as a
member of any board of any entity will be subject to approval of the Nominating and Governance
Committee of the Board and other Company policies as may be in effect or required from time to
time;
provided
further
, that as of the Effective Date the Company has so approved
the Executives service as (i) Vice Chairman and Incoming Chairman for 2010 2011 of the World
Presidents Organization, (ii) member of the Membership Committee of the Economic Club of Chicago
and (iii) member of the Board of Directors and Chairman of the Facilities Committee of the Joffrey
Ballet.
2
4.
Compensation
. As compensation for services hereunder rendered, the Executive shall
receive during the Term (each as may be subject to
Section 13
):
(a)
Base Salary
. An annual base salary (
Base Salary
) of not less than $375,000,
payable in equal installments in accordance with the Companys normal payroll procedures, to be
reviewed annually by the Committee, with input from the CEO. The Executive may receive increases
(but not decreases) in his Base Salary from time to time, as approved by the Committee, with input
from the CEO. The amount of the Base Salary of the Executive will first be reviewed for adjustment
with regard to the Base Salary to be paid in calendar year 2011.
(b)
Annual Bonus
. The Company shall pay or cause to be paid to the Executive an
annual cash bonus (
Annual Bonus
) in accordance with the terms set forth below (in each instance,
provided that the Executive is employed by the Company on the date such bonuses are paid).
(i) For calendar year 2010, the amount of the Annual Bonus shall be not less
than $525,000, pro-rated, on a per diem basis, for that portion of calendar year 2010
in which the Executive is employed. The Annual Bonus for calendar year 2010 shall be
paid within two and one-half (2
1
/
2
) months following the end of calendar year 2010,
provided that the Executive is employed by the Company on the date of payment
(subject to
Sections
7(e)
and
8(a)(5)
).
(ii) For calendar year 2011 and thereafter, the Executive shall be eligible for
an Annual Bonus with an expected annual target of 140% of the Executives Base Salary
for such relevant year based on the Executives and the Companys achievement of
individual, MPO and corporate performance goals, as determined by the Committee or
such annual incentive plan as may be in effect from time to time (any or all of
which, the
Bonus Plan
) in the Committees discretion. The actual amount of each
Annual Bonus will be determined based on the attainment of performance goals set by
the Committee in accordance with its policies, plans and programs as in effect from
time to time and a performance evaluation for the applicable year, each in a manner
consistent with that applicable to other executive officers of the Company; the
Annual Bonus shall be paid within two and one-half (2
1
/
2
) months following the end of
the calendar year in which earned, provided that the Executive is employed by the
Company on the date of payment (subject to
Sections
7(e)
and
8(a)(5)
).
3
(c)
Annual Long-Term Incentive Awards
. The Executive shall be entitled to participate
in the Companys 2006 Incentive Plan (
LTIP
), and be granted awards under the LTIP, all on such
terms and conditions as may be determined by the Committee from time to time.
(i) For calendar year 2010, the Executive shall receive an award pursuant to the
LTIP having a grant date fair value of not less than $600,000, pro-rated, on a per
diem basis, for that portion of calendar year 2010 in which the Executive is
employed, and consisting of both Options (as defined in the LTIP) to purchase Shares
(as defined in the LTIP) of the Companys common stock and Shares of Restricted Stock
(as defined in the LTIP). The LTIP award to the Executive for calendar year 2010
shall be made when equity grants are made to other executive officers of the Company,
generally not later than March 31, provided that the Executive is employed by the
Company on the date of grant to other executive officers of the Company. The
methodology for the valuation of the Options and the allocation between Options and
Restricted Stock shall be made in the sole discretion of the Committee; provided that
such methodology for the valuation and allocation will be similar to the methodology
for valuation and allocation used for other executive officers of the Company, except
as may otherwise be determined by the Committee. It is the current intention of the
Company that the allocation shall be 30% Options and 70% Restricted Stock;
provided
,
however
, that, such allocation is subject to change in the
sole discretion of the Committee provided such change is also applicable to other
executive officers of the Company. Such Options and Restricted Stock shall vest (and
in the case of the Options become exercisable), subject to continued employment on
the applicable vesting date, as follows: one third (1/3) on the date of grant; one
third (1/3) on the first anniversary of the date of grant; and the remaining one
third (1/3) on the second anniversary of the date of grant;
provided
,
however
, that such Options and Restricted Stock that are not vested (or
exercisable) upon the Executives termination of employment shall be forfeited upon
the Executives termination of employment except as otherwise provided in the LTIP,
the applicable Option or Restricted Stock Award Agreement or this Agreement.
(ii) For calendar year 2011 and thereafter, the Executive shall be eligible for
an annual award pursuant to the LTIP with an expected annual target grant date fair
value of 160% of the Executives Base Salary (the
Annual Grant
), it being
understood that the actual amount of each Annual Grant will be determined based on
the Executives and the Companys achievement of individual, MPO and corporate
performance goals, as determined by the Committee, each in a manner consistent with
that applicable to other executive officers of the Company and taking into account
the performance of the MPO, subject in all events to the authority and discretion of
the Committee. The Annual Grants will consist of Options to purchase Shares of the
Companys common stock and Shares of Restricted Stock. The methodology for the
valuation of the Options and the allocation between Options and Restricted Stock
shall be made in the sole discretion of the Committee; provided that such methodology
for the valuation and allocation will be similar to the methodology for valuation and
allocation used for other executive officers of the Company, except as may otherwise
be determined by the Committee. The LTIP award to the Executive for calendar year
2011 and thereafter shall be made when equity grants are made to other executive
officers of the Company, generally not later than March 31 of the relevant year,
provided that the Executive is employed by the Company on the date of grant to other
executive officers of the Company. Such Options and Restricted Stock shall vest (and
in the case of the Options become exercisable) all as determined by the Committee;
provided
,
however
, that such Options and Restricted Stock that are
not vested (or exercisable) upon the Executives termination of employment shall be
forfeited upon the Executives termination of employment except as otherwise provided
in the LTIP, the Option or Restricted Award Agreement or this Agreement.
4
(iii) Except for any terms set forth in this Agreement, the Options and
Restricted Stock Award Agreements will be in form and substance generally similar to
the forms adopted under the LTIP and on file with the U.S. Securities and Exchange
Commission, subject at all times to the discretion of the Committee to establish the
terms and conditions of any award.
(d)
Incentive Share Grant I
. Subject to
Section 4(g)
, as of the date of Closing, the
Company shall issue to the Executive 55,561 restricted shares of its common stock (the
Incentive
Share Grant I
), pursuant to the LTIP, under the terms and conditions set forth in the restricted
stock grant agreement, dated as of the Closing date (the
Incentive Share Grant I Agreement
).
Subject to the Incentive Share Grant I Agreement, the Incentive Share Grant I will be forfeited
upon the termination of the Executives employment with the Company, other than terminations that
occur by reason of death, Disability, termination of employment by the Company without Cause or
termination by the Executive for Good Reason (each of Disability, Cause and Good Reason as defined
below). In addition, subject to the Incentive Share Grant I Agreement, the Incentive Share Grant I
will be forfeited upon a termination for Cause under
Section
6(b)(i)
hereof. If the Executive is
terminated for Cause under
Sections
6(b)(ii)
,
6(b)(iii)
or
6(b)(iv)
hereof, the Incentive Share
Grant I will continue to vest on the then-current vesting schedule unless the Executive (i)
breaches his obligations under
Section 9
hereof, or (ii) breaches his obligations or restrictions
under that certain Intellectual Property Rights Purchase and Sale Agreement, of even date herewith,
by and among the Company and the Executive, in which case, subject to the Incentive Share Grant I
Agreement, the Incentive Share Grant I will be forfeited. The Incentive Share Grant I Agreement
shall provide that such forfeiture restrictions will lapse subject to the applicable vesting
schedule, as follows: 30% on the first anniversary of the Closing; 60% on the second anniversary
of the Closing; and 100% on the earliest of:
(i) the third anniversary of the Closing;
(ii) upon the Executives death or Disability;
(iii) upon the direct or indirect sale of substantially all of (A) the Medical
Properties or (B) the Medical Property Operations acquired in the Transactions
contemplated by the Acquisition definitive documents (and any other properties, which
become 100% owned by the Company or its affiliates after the date hereof, in which
THL-191 JV, LLC or LHT SH, LLC or LilliCal JV, LLC owned a minority interest in on
the date hereof), if, in the case of (B), those Medical Property Operations represent
more than 50% of the net operating income of all of the Companys Medical Property
Operations (measured on a trailing 12-month basis, which shall include pro forma net
operating income from acquisitions of Medical Properties made within that 12-month
period);
provided
,
however
, that the foregoing shall not include any
transaction where all or a portion of the Medical Property Operations are
transferred to a joint venture between the Company and an institutional third party,
and following the formation of the joint venture the Company continues to manage the
properties transferred into the joint venture;
5
(iv) the first anniversary of a Change of Control (as defined below) of the
Company, if the Executive is then employed by the Company or its successors; or
(v) the termination of the Executives employment by the Company other than for
Cause, or by the Executive for Good Reason.
(e)
Incentive Share Grant II
. As of the date of Closing, the Company shall issue to
the Executive 55,561 restricted shares of its common stock (the
Incentive Share Grant II
),
pursuant to the LTIP, under the terms and conditions set forth in the restricted stock grant
agreement, dated as of the Closing date (the
Incentive Share Grant II Agreement
). Subject to the
Incentive Share Grant II Agreement, the Incentive Share Grant II will be forfeited upon the
termination of the Executives employment with the Company, other than terminations that occur by
reason of death, Disability, termination of employment by the Company without Cause or termination
by the Executive for Good Reason (each of Disability, Cause and Good Reason as defined below). In
addition, subject to the Incentive Share Grant II Agreement, the Incentive Share Grant II will be
forfeited upon a termination for Cause under
Section
6(b)(i)
hereof. If the Executive is
terminated for Cause under
Sections
6(b)(ii)
,
6(b)(iii)
or
6(b)(iv)
hereof, the Incentive Share
Grant II will continue to vest on the then-current vesting schedule unless the Executive (i)
breaches his obligations under
Section 9
hereof, or (ii) breaches his obligations or restrictions
under that certain Intellectual Property Rights Purchase and Sale Agreement, of even date herewith,
by and among the Company and the Executive, in which case, subject to the Incentive Share Grant II
Agreement, the Incentive Share Grant II will be forfeited. The Incentive Share Grant II Agreement
shall provide that such forfeiture restrictions will lapse subject to the applicable vesting
schedule, as follows: 50% on the fourth anniversary of the Closing; and 100% on the earliest of:
(i) the fifth anniversary of the Closing;
(ii) upon the Executives death or Disability;
(iii) upon the direct or indirect sale of substantially all of (A) the Medical
Properties or (B) the Medical Property Operations acquired in the Transactions
contemplated by the Acquisition definitive documents (and any other properties, which
become 100% owned by the Company or its affiliates after the date hereof, in which
THL-191 JV, LLC or LHT SH, LLC or LilliCal JV, LLC owned a minority interest in on
the date hereof), if, in the case of (B), those Medical Property Operations represent
more than 50% of the net operating income of all of the Companys Medical Property
Operations (measured on a trailing 12-month basis, which shall include pro forma net
operating income from acquisitions of Medical Properties made within that 12-month
period);
provided
,
however
, that the foregoing shall not include any
transaction where all or a portion of the Medical Property Operations are
transferred to a joint venture between the Company and an institutional third party,
and following the formation of the joint venture the Company continues to manage the
properties transferred into the joint venture;
6
(iv) the first anniversary of a Change of Control (as defined below) of the
Company, if the Executive is then employed by the Company or its successors; or
(v) the termination of the Executives employment by the Company other than for
Cause, or by the Executive for Good Reason.
(f)
Incentive Share Agreements
. The Incentive Share Grant I Agreement and Incentive
Share Grant II Agreement (together, the
Incentive Share Agreements
) shall provide that all
dividends declared with respect to the Incentive Share Grant I and Incentive Share Grant II
(together, the
Incentive Shares
) shall be distributed to the holders of the Incentive Shares
without regard to vesting; provided that all dividends paid with respect to unvested shares shall
be subject to applicable wage withholding to the extent required by law. Except for any terms set
forth in this Agreement, the Incentive Share Agreements will be in form and substance generally
similar to the forms adopted under the LTIP and on file prior to the Effective Date with the U.S.
Securities and Exchange Commission. If requested by the Executive not more than twenty-five (25)
days following the date of Closing, the Company will cooperate with the Executive in the making of
one or more elections contemplated under Section 83(b) of the Internal Revenue Code of 1986, as
amended (a
Section
83(b)
Election
) with respect to all or any portion of the Incentive Shares.
In the event that the Executive and the Company make a timely Section 83(b) Election with respect
to all or any portion of the Incentive Shares, to the extent permitted by law such Incentive Shares
will be treated as vested for purposes of determining whether applicable wage withholding is
required with respect to all dividends paid with respect to such Incentive Shares.
(g)
Profits Interests
. Notwithstanding the foregoing, as an alternative to the grant
of the Incentive Share Grant I, the parties may mutually agree that the Company may grant to the
Executive an economic equivalent award of downREIT profits interests, which are convertible into
shares of the Company in place of some or all of Incentive Share Grant I. Any such profits
interests issued in place of Incentive Share Grant I shall be subject to the terms and provisions
of
Section 4(d)
, including, without limitation, the vesting schedule.
5.
Benefits
.
(a)
The Executive shall be entitled to participate in the Ventas, Inc. 401(k) Retirement
Savings Plan (the
4
01(k)
Plan
), Deferred Compensation Plan (if any), medical, dental, long term
disability and group life insurance coverages and fringe benefit plans, policies, practices and
programs, from time to time in effect for executives of the Company and its affiliates in
accordance with the terms and conditions thereof.
(b)
The Executive shall be entitled to accrue four weeks of paid vacation per calendar year,
in accordance with the Companys vacation plan, policy or program in effect from time to time, at a
time or times mutually agreed between the Executive and the CEO.
7
(c)
The Executive may incur reasonable expenses for promoting the Companys business,
including expenses for entertainment, travel and similar items. The Company shall reimburse the
Executive for such reasonable expenses upon receipt by the Company of accounting in accordance with
the Companys reimbursement policies and procedures in effect from time to time.
(d)
The Company will reimburse the Executive for the cost of parking for one automobile at the
offices of the Executives employment and for the cost of membership in the Union League Club of
Chicago, Urban Land Institute, Economic Club of Chicago and for 2011 only, the World Presidents
Organization, not to exceed $22,000 in the aggregate annually. Beginning in 2012, the Company and
the Executive shall mutually determine the most beneficial use of the funds attributable to the
membership dues for the World Presidents Organization (approximately $11,000 annually), including
the use of such funds for professional development (e.g. executive coaching, media training and the
like) for the Executive, and the Company shall determine whether to continue to reimburse the
Executive for such World Presidents Organization membership dues.
(e)
Notwithstanding the foregoing, the parties acknowledge and agree that for a period of time
following the Closing, the Executive may remain in certain benefit plans, programs or arrangements
of Lillibridge until such plans, programs or arrangements are terminated or integrated into such
plans, programs or arrangements maintained by the Company, all as may be determined in the sole
discretion of the Company.
6.
Termination of Employment
. The Executives employment hereunder and this Agreement
may be terminated during the Term by the Company or the Executive at any time, for any reason,
without a breach of this Agreement. The Executives right to benefits and payments, if any, for
periods after the date on which his employment with the Company terminates during the Term shall be
determined in accordance with the provisions of this
Section 6
and
Section 7.
(a)
Death or Disability
. The Executives employment hereunder and this Agreement
shall terminate automatically upon the Executives death during the Term. If the Company
determines in good faith that the Executives Disability has occurred during the Term, it may give
to the Executive written notice of its intention to terminate the Executives employment. In such
event, the Executives employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive, or the Expiration Date, if earlier (the
Disability
Effective Date
), provided that, within the thirty (30) days after such receipt, the Executive
shall not have returned to full-time performance of the Executives duties. For purposes of this
Agreement,
Disability
shall mean a mental or physical condition which, in the reasonable opinion
of the Company, based on the opinion of a doctor, renders the Executive with or without reasonable
accommodation unable or incompetent to carry out his material job responsibilities which he held or
the material duties he was assigned at the time the disability was incurred, which has existed for
at least three (3) months and which in the opinion of a physician selected by the Company is
expected to be permanent or to last for an indefinite duration or a duration in excess of six (6)
months.
8
(b)
Cause
. The Company may terminate the Executives employment hereunder and this
Agreement during the Term for Cause. For purposes of this Agreement,
Cause
shall mean the
Executives:
(i) indictment for, conviction of, or plea of
nolo
contendere
to, any felony, of any type, or a misdemeanor involving fraud, dishonesty or moral
turpitude;
(ii) willful or intentional material breach of his duties and responsibilities
hereunder;
(iii) willful or intentional material misconduct in the performance of his
duties under this Agreement; or
(iv) willful or intentional material failure to comply with any lawful written
instruction or directive of the CEO.
With respect to provisions (ii), (iii) and (iv) above, any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based upon advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive
in good faith and in the best interests of the Company, and as such, will not constitute grounds
for a determination of Cause.
(c)
Good Reason
. The Executive may terminate his employment hereunder and this
Agreement during the Term for Good Reason. For purposes of this Agreement,
Good Reason
shall
mean any of the following:
(i) the assignment to the Executive of any duties materially and adversely
inconsistent with, or a material diminution of, the Executives position (including
offices, titles, reporting requirements or responsibilities), authority or duties as
prescribed by
Section 2
;
(ii) the Companys requiring the Executive to be based at any office or location
that is more than fifty (50) miles from Chicago, Illinois;
(iii) the failure to pay Base Salary in at least the amount prescribed by
Section 4(a)
;
(iv) the failure to provide an Annual Bonus opportunity prescribed by
Section
4(b)
;
(v) the failure to provide benefits or perquisites prescribed by
Section 5
or
substantially similar benefits or perquisites;
(vi) if without the Executives consent (which may be withheld in his sole
discretion), the MPO ceases to be operated under the Lillibridge brand and name,
either exclusively or non-exclusively in conjunction with the Companys brand and
name, as determined from time to time by the Company (by way of example, and not
limitation, using Lillibridge a Ventas Company would not constitute Good Reason);
or
9
(vii) any other action or inaction that constitutes a material breach by the
Company of this Agreement, or a failure by the Company to cause a successor, prior to
or as of the date it becomes a successor, to assume and agree to perform this
Agreement in accordance with the provisions of
Section 11(c)
;
which in each case either is not curable, or if curable is not cured within thirty (30)
days after written notice from the Executive to the Company setting forth in reasonable
detail the facts and circumstances claimed to constitute Good Reason and affording the
Company an opportunity to cure. Any termination of employment by the Executive for Good
Reason shall be communicated to the Company by Notice of Termination in accordance with
this Agreement. The Executive must deliver to the Company the Notice of Termination not
later than ninety (90) days after the Executive has actual knowledge of an act or omission
which constitutes Good Reason. In the event that the Company fails to remedy the
condition constituting Good Reason during the applicable cure period, the Separation from
Service (as defined below) must occur, if at all, within six (6) months following the end
of such cure period in order for such termination as a result of such condition to
constitute a termination for Good Reason.
(d)
Notice of Termination
. Any termination of the Executives employment hereunder by
the Company or the Executives resignation of employment hereunder shall be communicated by notice
(a
Notice of Termination
) given in accordance with this Agreement.
(i) For purposes of any termination by the Company for Cause or by the Executive
for Good Reason, as provided herein, a Notice of Termination means a written notice
which (A) indicates the specific termination provision in this Agreement relied upon,
(B) sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination by the Company (for Cause) or by the Executive (with Good
Reason) of the Executives employment under the provision so indicated, and (C)
specifies the intended termination date. The failure by the Company or the Executive
to set forth in the Notice of Termination any fact or circumstance which contributes
to a showing of Cause or Good Reason shall not waive any right of the Company or the
Executive, respectively, hereunder or preclude the Company or the Executive,
respectively, from asserting such fact or circumstance in enforcing their respective
rights hereunder.
(ii) For purposes of any termination by the Executive without Good Reason, as
provided herein, a Notice of Termination means a written notice to such effect
provided to the Company not less than sixty (60) days prior to the effective date
thereof.
10
(e)
Date of Termination
.
Date of Termination
means (i) if the Executives
employment is terminated by the Company for Cause or by the Executive for Good Reason, the date
specified in the Notice of Termination (consistent with the provisions of
Section 6(c)
), (ii) if
the Executives employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notified the Executive of such
termination, (iii) if the Executive resigns other than for Good Reason, the Date of Termination
shall be the date sixty (60) days after the Executive notified the Company of such termination and
(iv) if the Executives employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability Effective Date, as the
case may be. Following the Companys receipt of a Notice of Termination pursuant to (iii) above,
the Company may, by written notice to the Executive, designate an earlier date (not earlier than
the date of such notice to the Executive) as of which the Executives Date of Termination shall
occur; provided that the Company continue to provide Base Salary and insurance benefits to the
Executive in lieu of the continued employment of the Executive through the original Date of
Termination had such earlier termination not occurred. To the extent necessary to have payments
and benefits under this Agreement be exempt from the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (
Section 409A
) or comply with the requirements of Section 409A,
the Company and the Executive agree to cooperate in a reasonable manner (including with regard to
any post-termination services by the Executive) such that the Date of Termination as defined in
this Agreement shall constitute a separation from service pursuant to Section 409A (
Separation
from Service
). Notwithstanding anything contained in this Agreement to the contrary, the date on
which a Separation from Service occurs shall be the Date of Termination or termination of
employment for purposes of determining the timing of payments under this Agreement to the extent
necessary to have such payments and benefits under this Agreement be exempt from the requirements
of Section 409A or comply with the requirements of Section 409A.
7.
Obligations of the Company Upon Termination
. Following any termination of the
Executives employment hereunder during the Term except for a termination in connection with a
Change of Control covered by
Section 8
hereof, the Company shall pay the Executive his Base Salary
through the Date of Termination, unpaid expense reimbursement (subject to appropriate
documentation) and any amounts accrued or owed (but yet unpaid) to the Executive pursuant to the
terms and conditions of the executive benefit plans and programs of the Company at the time such
payments are due, including accrued and unpaid vacation (the
Accrued Obligations
). In addition
to the Accrued Obligations, as may be provided below, and strictly conditioned upon the Executives
execution and non-revocation of a general release of claims in form substantially similar to the
form attached hereto as Attachment A (the
Release
) within thirty (30) days following the Date of
Termination, the Executive shall be entitled to the following additional payments:
(a)
Death or Disability
. If, during the Term, the Executives employment shall
terminate by reason of the Executives death or Disability, the Company shall pay to the Executive
(or his designated beneficiary or estate, as the case may be) the Accrued Obligations, plus the
Annual Bonus the Executive would have received for the year of termination of employment assuming
maximum individual and Company performance (the
Maximum Annual Bonus
), prorated, on a per diem
basis, for the number of days in the year of the termination of employment during which the
Executive was employed by the Company. The Company will pay such amount to the Executive on the
date that such amount would otherwise have been payable to the Executive if the Executives
employment had not terminated.
11
(b)
Other than for Cause, or for Good Reason
. If, during the Term, the Company shall
terminate the Executives employment other than for Cause (but not for Disability), or if the
Executive shall terminate his employment for Good Reason,
(1) The Company shall pay the Executive, within thirty (30) days of the Date of
Termination of employment (but not earlier than the date on which the Release
becomes irrevocable), a severance amount equal to the sum of one (1) year of the
Executives annual Base Salary as then in effect, plus the Maximum Annual Bonus
(together the
Severance Payment
), with such Severance Payment payable in a single
lump-sum payment within thirty (30) days following the date of termination. If the
Executive should die after amounts become payable under this Paragraph, such amounts
shall thereafter be paid to the Executives estate. In no event shall the Severance
Payment made pursuant to this
Section
7(b)(1)
be in excess of the Maximum Amount.
Maximum Amount
for purposes of this Agreement shall mean $3,000,000, provided,
however, that for any termination that occurs in calendar years subsequent to 2011,
the Maximum Amount will be adjusted to reflect increases, if any, in the Consumer
Price Index that have occurred in the period between December 31, 2010 and the end
of the calendar year immediately preceding the date of termination. As an example,
if the termination occurs in 2012, the Maximum Amount shall be adjusted for
increases in the Consumer Price Index that occur between December 31, 2010 and
December 31, 2011 and if the termination occurs in 2013, the Maximum Amount shall be
adjusted for increases in the Consumer Price Index that occur between December 31,
2010 and December 31, 2012. For purposes of this Agreement, Consumer Price Index
means the CPI for All Urban Consumers (All Items; Base Year 1982), compiled and
published by the Bureau of Labor Statistics of the United States Department of
Labor.
(2) During the one (1) year period commencing on the Date of Termination (the
Benefit Period
), provided the Executive is eligible for and elects continuing
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (
COBRA
), the Company shall provide the Executive with continued medical,
dental, long-term disability and life insurance benefits at the same levels and
costs as if he had remained actively employed during the Benefit Period; provided
that the Executive shall not participate in any short term disability, bonus (except
as provided in
Section
7(b)(1)
), vacation pay, retirement benefits, long-term
incentive, stock option or other equity grant plan, program or arrangement after the
Date of Termination. The receipt of the medical and dental benefits shall be
conditioned upon the Executive continuing to pay the Company on a monthly basis the
portion of the periodic cost of such continued coverage equal to the dollar amount
of such periodic cost as if he had remained employed during the Benefit Period.
Such medical and dental benefits shall become secondary to the extent the Executive
receives similar benefits from a subsequent employer; provided, that the Executive
agrees to report to the Company any coverage and benefits actually received by or
made available to the Executive from such other employer(s). In the event continued
long-term disability is unavailable for the Executive on a post-termination basis,
the Company shall pay to the Executive, in a single lump-sum, an amount equal to the
premiums previously paid for such coverage for a twelve (12) month period.
12
(3) To the extent requested by the Executive within thirty (30) days following
the Date of Termination, the Company shall take all action necessary, if any, to
facilitate the Executives exercise of all conversion privileges, if any, under any
applicable group term life insurance policy.
(4) Options and restricted stock held by the Executive for which the exercise
period has not yet lapsed or expired shall be subject to applicable terms and
conditions of the LTIP and applicable option or restricted stock award agreements;
provided
,
however
, that any outstanding and unvested Incentive
Shares shall become fully vested.
(c)
Cause; Executive Resignation
. If the Executives employment shall be terminated
by the Company for Cause or by the Executive other than for Good Reason (and other than due to the
Executives death), during the Term, the Company shall have no further obligations to the Executive
under this Agreement other than to pay the Accrued Obligations as provided above.
(d)
Death after Termination
. In the event of the death of the Executive during the
period the Executive is receiving payments pursuant to this Agreement, the Executives designated
beneficiary shall be entitled to receive the balance of the payments, or in the event of no
designated beneficiary, the remaining payments shall be made to the Executives estate.
(e)
Annual Bonus Entitlement
. In the event of the Executives termination pursuant to
Sections
7(a)
or
7(b)
, and such termination occurs (i) following the completion of an applicable
performance period for purposes of the Annual Bonus and (ii) prior to the payment of the Annual
Bonus for such performance period, then the Executive shall be entitled to such Annual Bonus, based
on the actual performance relative to the performance measures established pursuant to
Section
4(b)
, as determined by the Committee (with the same authority and discretion as provided in
Section
4(b)
), with such payment being made at the same time and in the same manner as annual bonuses are
paid to the other executive officers of the Company.
8.
Occurrence of a Change in Control
.
(a)
Termination other than for Cause, or for Good Reason
. If during the Term (i) a
Change of Control (as defined below) shall occur, and (ii) within one year from the date of the
occurrence of such Change of Control (and within the Term) the Company shall terminate the
Executives employment other than for Cause or the Executive shall terminate his employment for
Good Reason (a
Change of Control Severance
), subject to the Executives execution and
non-revocation of the Release within thirty (30) days following the Date of Termination and in lieu
of the benefits under
Section 7
hereof, in addition to payment of the Accrued Obligations, the
Executive shall be entitled to the following payments:
(1) The Company shall pay the Executive within thirty (30) days of the Date of
Termination of employment (but not earlier than the date on which the Release
becomes irrevocable) a lump-sum payment equal to two (2) times the sum of (i) one
(1) year of the Executives annual Base Salary as then in effect, plus (ii) the
Executives Maximum Annual Bonus for the year of termination, plus (iii) the fair
market value (determined as of the Date of Termination) of the target number of
shares of Restricted Stock authorized to be granted to the Executive under the LTIP
in the year of termination assuming all performance criteria for such awards were
deemed satisfied (the
CIC Severance Payment
); provided that in no event shall the
amount of such payment exceed the Maximum Amount.
13
(2) Options held by the Executive for which the exercise period has not yet
lapsed or expired shall become fully vested and exercisable, and all Restricted
Stock held by the Executive shall become fully vested.
(3) During the eighteen (18) month period commencing on the date of the Change
in Control Severance (the
CIC Benefit Period
), provided the Executive is eligible
for and elects continuing coverage under COBRA, the Company shall provide the
Executive with continued medical, dental, long-term disability and life insurance
benefits at the same levels and costs as if he had remained actively employed during
the CIC Benefit Period; provided that the Executive shall not participate in any
short term disability, bonus (except as provided in
Section
8(a)(1)
), vacation pay,
retirement benefits, long-term incentive, stock option or other equity grant plan,
program or arrangement after the Date of Termination. The receipt of the medical
and dental benefits shall be conditioned upon the Executive continuing to pay the
Company on a monthly basis the portion of the periodic cost of such continued
coverage equal to the dollar amount of such periodic cost as if he had remained
employed during the CIC Benefit Period. Such medical and dental benefits shall
become secondary to the extent the Executive receives similar benefits from a
subsequent employer; provided, that the Executive agrees to report to the Company
any coverage and benefits actually received by or made available to the Executive
from such other employer(s).
(4) To the extent requested by the Executive within thirty (30) days following
the Date of Termination, the Company shall take all action necessary, if any, to
facilitate the Executives exercise of all conversion privileges, if any, under any
applicable group term life insurance policy.
(5) In the event of the Executives termination pursuant to this
Section 8(a)
,
and such termination occurs (i) following the completion of an applicable
performance period for purposes of the Annual Bonus and (ii) prior to the payment of
the Annual Bonus for such performance period, then the Executive shall be entitled
to such Annual Bonus, based on the actual performance relative to the performance
measures established pursuant to
Section 4(b)
, as determined by the Committee (with
the same authority and discretion as provided in
Section 4(b)
), with such payment
being made at the same time and in the same manner as annual bonuses are paid to the
other executive officers of the Company.
14
Notwithstanding the foregoing, in the event that the Change of Control does not also qualify
as a change in ownership or change in the effective control of a corporation, as defined under
Section 409A of the Code, and the CIC Severance Payment amounts constitute deferred compensation
under Section 409A of the Code, then such CIC Severance Payment shall be paid in the same time and
manner as provided under
Section
7
(b)(1)
.
(b)
For purposes of this Agreement, a
Change in Control
means the occurrence of any of the
following events:
(1) An acquisition (other than directly from the Company) of any voting
securities of the Company (the
Voting Securities
) by any Person (as defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the 1934 Act) and used in
Section 13(d) and 14(d) thereof, including a group as defined in Section 13(d)),
immediately after which such Person has Beneficial Ownership (within the mean of
Rule 13d-3 under the 1934 Act) of more than 50% of the combined voting power of
Companys then outstanding Voting Securities; provided, however, that in determining
whether a Change in Control has occurred, Voting Securities which are acquired in an
acquisition by (i) the Company or any of its subsidiaries, (ii) an employee benefit
plan (or a trust forming a part thereof) maintained by the Company or any of its
subsidiaries or (iii) any Person in connection with an acquisition referred to in
the preceding clause (i), shall not constitute an acquisition which would cause a
Change in Control.
(2) During any twelve month period, the individuals who, as of the Closing,
constituted the Board (the
Incumbent Board
) cease for any reason to constitute
over 50% of the Board; provided, however, that if the election, or nomination for
election by the Companys stockholders, of any new director was approved by a vote
of over 50% of the Incumbent Board, such new director shall, for purposes of this
Section 8(b)
, be considered as though such person were a member of the Incumbent
Board; provided, further, however, that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened Election Contest (as described in Rule 14a-11
promulgated under the 1934 Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board of Directors of
the Company (a
Proxy Contest
), including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest.
15
(3) Consummation of a merger, consolidation or reorganization involving the
Company, unless each of the following events occurs in connection with such merger,
consolidation or reorganization:
(i) the stockholders of the Company, immediately before such merger,
consolidation or reorganization, own, directly or indirectly immediately following
such merger, consolidation or reorganization, 50% or more of the combined voting
power of all voting securities of the corporation resulting from such merger or
consolidation or reorganization (the
Surviving Company
) over which any Person has
Beneficial Ownership in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation or reorganization;
(ii) the individuals who were members of the Incumbent Board immediately prior
to the execution of the agreement providing for such merger, consolidation or
reorganization constitute over 50% of the members of the board of directors of the
Surviving Company; and
(iii) no Person (other than the Company, any of its subsidiaries, any employee
benefit plan (or any trust forming a part thereof) maintained by the Company, the
Surviving Company or any Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of 35% or more of the then outstanding
Voting Securities) has Beneficial Ownership of more than 35% of the combined voting
power of the Surviving Companys then outstanding voting securities.
(4) A complete liquidation or dissolution of the Company.
(5) Approval by Companys stockholders of an agreement for, and the
consummation of, the sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a subsidiary of the
Company).
(6) Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the
Subject Person
) acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a result
of the acquisition of Voting Securities by the Company which, by reducing the number
of Voting Securities outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person; provided that if a Change in Control would
occur (but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the Company,
the Subject Person becomes the Beneficial Owner of any additional Voting Securities
which increases the percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall occur.
16
9.
Restrictive Covenants
. The Executive acknowledges that his key position at the
Company will provide him with access to highly sensitive information concerning, and participation
in material decisions and policies regarding, the Company, including the Companys principal
operators, managers, lessors, tenants and their respective affiliates and the contractual
arrangements of the Company with such operators, managers, lessors, tenants and their respective
affiliates and including decisions regarding the purchase and sale of properties by the Company,
all of which are critical to the Companys ability to effectively function and compete in the
markets in which it does business, and that if the Executive were to provide services for or
information to such principal operators, managers, lessors, tenants and their respective
affiliates, or to competitors of the Company who similarly deal with such operators, managers,
lessors, tenants and their respective affiliates, or if he were to otherwise violate any of the
provisions of this
Section 9
, such services or information would cause irreparable damage to the
Company. For the purposes of this
Section 9
, unless the context implies otherwise, the term
Company
shall include the Companys affiliates and subsidiaries (including all entities acquired
in the Transaction) and for the period commencing on the Effective Date and ending on the Closing
or the cancellation of the Transaction Agreement, the term
Company
shall also include Lillibridge
and its affiliates and subsidiaries. Because of the extensive due diligence and sharing of
Confidential Information and other sensitive and proprietary information between the parties in
contemplation of the Transactions, the Executive agrees and acknowledges that notwithstanding (i)
the termination of this Agreement, (ii) termination of the Executives employment or (iii) the
occurrence of the Closing, this
Section 9
shall apply to the Executive as of the Effective Date;
provided, however, that in the event that the Closing does not occur as contemplated by the
Transaction Agreement by December 31, 2010 or the Transaction Agreement is terminated at any time
in accordance with its terms, then only the Restrictive Covenants contained in
Section
9(a)
shall
be effective beyond the date of such termination.
(a)
Confidentiality
.
(i) The Executive shall not, unless written permission is granted by the
Company, disclose to or communicate in any manner with the press or any other media
about his employment with the Company, the terms of this Agreement, the termination
of his employment with the Company, the Companys businesses or affairs, the
Companys officers, directors, employees and/or consultants, or any matter related to
any of the foregoing.
(ii) The Executive acknowledges that it is the policy of the Company to maintain
as secret and confidential all valuable and unique information and techniques
acquired, developed or used by the Company relating to their business, operations,
actual or potential products, strategies, potential liabilities, employees, tenants,
proposed or prospective tenants and customers, business partners and customers,
(including information protected by the Companys attorney/client, work product, or
tax advisor/audit privileges; tax matters and information; financial analysis models;
the Companys strategic plans; negotiations with third parties; methods, policies,
processes, formulas, techniques, know-how and other knowledge; trade practices, trade
secrets, or financial matters; lists of customers or customers purchases; lists of
suppliers, representatives, or other distributors; lists of and information about
tenants
17
and lessors; requirements for systems, programs,
machines, or their equipment; information regarding the Companys bank accounts,
credit agreement or financial projections information; information regarding the
Companys directors or officers or their personal affairs) which gives the Company
and its subsidiaries a competitive advantage in the businesses in which the Company
and its subsidiaries are engaged, whether or not any such information or any of the
material described above is explicitly designated or marked as confidential
(
Confidential Information
). Confidential Information shall not include information
that (A) is or becomes generally available to the public other than as a result of a
disclosure by the Executive in violation of this Agreement, (B) was available to the
Executive on a non-confidential basis prior to the date hereof, or (C) is compelled
to be disclosed by a court or governmental agency, provided that prior written notice
is given to the Company and the Executive cooperates with the Company in any efforts
by the Company to limit the scope of such obligation and/or to obtain confidential
treatment of any material disclosed pursuant to such obligation. The Executive
recognizes that all such Confidential Information is the sole and exclusive property
of the Company and its subsidiaries, and that disclosure of Confidential Information
would cause damage to the Company and its subsidiaries. The Executive shall not
disclose, directly or indirectly, any Confidential Information obtained during his
employment with the Company, and will take all necessary precautions to prevent
disclosure, to any unauthorized individual or entity inside or outside the Company,
and will not use the Confidential Information or permit its use for the benefit of
the Executive or other third party other than the Company. These obligations shall
continue for so long as the Confidential Information remains Confidential
Information.
(b)
Noncompetition, Nonsolicitation, Noninterference
. The Executive shall not, during
the period commencing on the Effective Date and ending on the latest to occur of (i) the fifth
(5
th
) anniversary of the date of the Closing, or (ii) the second (2
nd
)
anniversary of the date of termination of the Executives employment with the Company for any
reason whether such termination occurs during the Term or thereafter (together, the
Restricted
Period
), either directly or indirectly (through another business or person) engage in or
facilitate any of the following activities anywhere in the United States:
(i) hiring, recruiting, engaging as a consultant or adviser, employing or
attempting or soliciting to hire, recruit or employ any person employed by the
Company, or causing or attempting to cause any third party to do any of the
foregoing;
(ii) causing or attempting to cause any person employed at any time during the
Restricted Period by the Company to terminate his or her relationship with the
Company;
18
(iii) soliciting, enticing away, or endeavoring to entice away, or otherwise
interfering with any employee, customer, tenant, financial partner, vendor, supplier
or other similar business relation, who at any time during the Restricted Period or
who at any time during the period commencing one year prior to the Date of
Termination, to the Executives knowledge, maintained a material business
relationship with the Company or with whom the Company is targeting for a material
business relationship or is engaged in discussions with to commence a material
business relationship at the time of the Executives termination of employment with
the Company (in each case where the Executive participates in such relationship or
potential relationship or where the Executive has had access to Confidential
Information regarding such relationship);
(iv) performing services as an employee, director, officer, consultant,
independent contractor or advisor to; or investing in (whether in the form of equity
or debt, owning any interest or otherwise having an ownership or other interest in or
a connection to), any healthcare real estate investment trust (
REIT
), or any person
which owns in excess of five percent (5%) of the issued and outstanding equity
interest of a healthcare REIT, or any other company, entity or person that directly
and materially competes with the Company anywhere in the United States. Nothing in
this
Section (iv)
shall, however, restrict the Executive from making an investment in
and owning, directly or indirectly, up to two percent (2%) of the common stock of any
company whose stock is listed on a national exchange,
provided
that such
investment does not give the Executive the right or ability to control or influence
the policy decisions of any direct competitor; or
(v) owning, directing, managing, developing, leasing, operating or supervising,
or working or performing any services, including consulting or advisory services, for
any business or person that, directly or indirectly, owns, directs, manages,
develops, leases, operates, or supervises for, any healthcare real estate property,
healthcare asset, healthcare facility, or healthcare community, including (whether
inpatient or outpatient) any medical office, ambulatory care/surgery, hospital
(specialty, short/general term acute, long term acute, psychiatric), diagnostic
center, emergency centers, medical centers located in retail businesses and MRI
centers. Nothing in this Section (v) shall, however, restrict the Executive from
making an investment in and owning, directly or indirectly, up to two percent (2%) of
the common stock of any company whose stock is listed on a national exchange,
provided that such investment does not give the Executive the right or ability to
control or influence the policy decisions of any direct competitor. Notwithstanding
anything to the contrary set forth in this Agreement, the Executives existing
investments in real estate that are leased to two retail stores, as previously
disclosed to the Company, will be deemed not to violate any provision of this
Agreement.
(c)
Other Prohibited Activities
. The Executive shall not during the Restricted
Period, either directly or indirectly (through another business or person) engage in or facilitate
any of the following activities anywhere in the United States or in any location outside the United
States where the Company conducts or plans to conduct business: (i) performing services as an
employee, director, officer, consultant, independent contractor or advisor to, or (ii) investing
in, whether in the form of equity or debt, owning any interest or otherwise having an ownership or
other interest or a connection to, any company or entity, or any of its parent, sister, subsidiary
or affiliated entities in any manner, including as an owner, principal, partner, officer, director,
stockholder, employee, consultant, contractor, agent, broker, representative or otherwise of any
Person that is then in an existing operator, tenant, lessor or manager relationship with the
Company, or any of its affiliates. Nothing in this Section (c) shall, however, restrict the
Executive from making an investment in and owning, directly or indirectly, up to two percent (2%)
of the common stock of any company whose stock is listed on a national exchange, provided that such
investment does not give the Executive the right or ability to control or influence the policy
decisions of any direct competitor.
19
(d)
Non-Disparagement
.
(i) The Executive agrees not to make, or cause to be made, any statement,
observation or opinion, or communicate any information (whether oral or written,
directly or indirectly) that (A) accuses or implies that the Company and/or any of
its affiliates, together with their respective present or former officers, directors,
partners, stockholders, employees and agents, and each of their predecessors,
successors and assigns, engaged in any wrongful, unlawful, unethical or improper
conduct, whether relating to the Executives employment (or termination thereof), the
business or operations of the Company, or otherwise; or (B) disparages, impugns or in
any way reflects adversely upon the business, good will, products, business
opportunities, competency, character, behavior or reputation of the Company and/or
any of its affiliates, together with their respective present or former officers,
directors, partners, stockholders, employees and agents, and each of their
predecessors, successors and assigns.
(ii) The Company agrees not to make, or cause to be made, any statement,
observation or opinion, or communicate any information (whether oral or written,
directly or indirectly) that (A) accuses or implies that the Executive engaged in any
wrongful, unlawful, unethical or improper conduct, whether relating to the
Executives employment (or termination thereof), the business or operations of the
Company, or otherwise; or (B) disparages, impugns or in any way reflects adversely
upon the business, good will, business opportunities, competency, character, behavior
or reputation of the Executive. Obligations of the Company under this Section (ii)
shall only apply to the Board and the CEO.
(iii) Nothing herein shall be deemed to preclude the Executive or the Company
from providing truthful testimony or information pursuant to subpoena, court order or
other similar legal process.
(e)
Limitations on Restrictive Covenants
. It is the intention of the parties that,
the limitations contained in
Sections
9(b)(iv)
and
9(b)(v)
herein shall not be deemed breached by
the Executives continuing to operate in the employ of Lillibridge in the ordinary course of
business as in effect prior to the Effective Date, provided that such activity does not utilize any
Confidential Information or other proprietary information of the Company obtained during the due
diligence process in contemplation of the Transactions. In addition, in the event that the
Transaction Agreement is terminated, the Restrictive Covenants, other than
Section 9(a)
, will be
null and void in their entirety.
20
(f)
New Employer
. The Executive shall provide the terms and conditions of this
Section 9
to any prospective new employer and shall permit the Company to contact any such company,
entity or individual to confirm the Executives compliance with this
Section 9
and shall provide
such company, entity or individual with such information (including a copy of this
Section 9
) as it
requests to allow such inquiry.
(g)
Reasonableness of Restrictive Covenants
.
(i) The Executive acknowledges that the covenants contained in this
Section 9
are reasonable in the scope of the activities restricted, the geographic area covered
by the restrictions, and the duration of the restrictions, and that such covenants
are reasonably necessary to protect the Companys legitimate interests in its
Confidential Information, its reputation, and in its relationships with its
employees, customers, and suppliers.
(ii) The Company has, and the Executive has had an opportunity to, consult with
their respective legal counsel and to be advised concerning the reasonableness and
propriety of such covenants. The Executive acknowledges that his observance of the
covenants contained herein will not deprive the Executive of the ability to earn a
livelihood or to support his dependents.
(h)
Right to Injunction
. In recognition of the confidential nature of the
Confidential Information, and in recognition of the necessity of the limited restrictions imposed
by
Section 9
, the Executive and the Company agree that it would be impossible to measure solely in
money the damages which the Company would suffer if the Executive were to breach any of his
obligations hereunder. The Executive acknowledges that any breach of any provision of this
Agreement would irreparably injure the Company. Accordingly, the parties agree that if a party
breaches any of the provisions of
Section 9
, the other party shall be entitled, in addition to any
other remedies to which the other party may be entitled under this Agreement or otherwise
(including the arbitration provisions of
Section 10
), to an injunction to be issued by a court of
competent jurisdiction, to restrain any breach, or threatened breach, of any provision of
Section
9
, and the breaching party hereby waives any right to assert any claim or defense that the
non-breaching party has an adequate remedy at law for any such breach.
(i)
Assistance
. During the one-year period following a termination of the Executives
employment with the Company, the Executive shall from time to time provide the Company with such
reasonable assistance and cooperation (not in excess of twenty (20) hours per month) as the Company
may reasonably from time to time request in connection with any financial and business issues,
investigation, claim, dispute, judicial, legislative, administrative or arbitral proceeding, or
litigation (any of the foregoing, a
Proceeding
) arising out of matters within the knowledge of
the Executive and related to his position as an employee of the Company. Such assistance and
cooperation shall include providing information, declarations or statements to the Company, signing
documents, meeting with attorneys or other representatives of the Company, and preparing for and
giving truthful testimony in connection with any Proceeding or related deposition. The Executive
shall agree to also make himself available to assist the Company with transition of the Executives
duties to his successor and addressing ongoing issues and problems. In any such instance, the
Executive shall provide such assistance and cooperation at times and in places mutually convenient
for the Company and the Executive and which do not unreasonably interfere with the Executives
business or personal activities. If and to the extent that the Company shall require the Executive
to render assistance pursuant to this
Section 9(i)
, the Company shall pay the Executive $300 per
hour for all time in excess of five (5) hours per month for such services. The Company shall
reimburse the Executives reasonable out-of-pocket costs and expenses in connection with such
assistance and cooperation upon the Executives written request in such form and containing such
information as the Company shall reasonably request.
21
(j)
Consideration
. In consideration of the restrictions set forth in
Sections 9(b)
and
9(c)
, the Company will pay the Executive the amount set forth on
Schedule 1
hereto,
subject to any applicable withholding pursuant to
Section 13
, with such amount to be paid in a
single lump-sum on the day of Closing.
10.
Disputes
. Any dispute or controversy arising under, out of, or in connection with
this Agreement (with the exception of the Companys right to seek an injunction under
Section 9
of
this Agreement) shall, at the election and upon written demand of the Company, be finally
determined and settled by binding arbitration in the City of Chicago, Illinois, in accordance with
the commercial arbitration rules and procedures of JAMS, and judgment upon the award may be entered
in any court having jurisdiction thereof. Each party shall bear its own costs, legal fees and
other expenses respecting such arbitration; provided, however, if one party shall prevail in the
claims in such arbitration, the non-prevailing party shall pay the prevailing partys costs,
non-contingent legal fees and other reasonable expenses respecting such arbitration party.
11.
Successors
.
(a)
This Agreement is personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executives
legal representatives.
(b)
This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c)
The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company, or any business of the Company for which the Executives services are principally
performed, to assume and agree to perform this Agreement in the same manner and to the same amount
that the Company would be required to perform it if no such succession had taken place. As used in
this Agreement,
Company
shall mean the Company as herein before defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
12.
Other Severance Benefits
. Other than as expressly provided therein, the Executive
hereby agrees that in consideration for the payments to be received under
Sections 7
or
8
of this
Agreement, the Executive waives any and all rights to any payments or benefits under any plans,
programs, contracts or arrangements of the Company or their respective affiliates that provide for
severance payments or benefits upon a termination of employment.
22
13.
Withholding
. The Company may withhold all applicable required federal, state,
local and other employment, income and other taxes from any and all payments to be made pursuant to
this Agreement.
14.
No Mitigation
. The Executive shall have no duty to mitigate his damages by
seeking other employment and, should the Executive actually receive compensation from any such
other employment, the payments required hereunder, shall not be reduced or offset by any such
compensation except that the welfare benefits provided pursuant to
Section
7(b)(2)
or
Section
8(a)(3)
shall end to the extent the Executive receives similar benefits from a subsequent employer
and would no longer be eligible for continuation coverage under COBRA.
15.
Notices
. Any notice required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given when delivered or sent by telephone
facsimile transmission, personal or overnight couriers, or registered mail with confirmation of
receipt, addressed as follows:
If to the Executive
: at the most recent address on file with the Company.
With a copy to:
Peter I. Mason
Freeborn & Peters, LLP
311 S. Wacker Dr., Ste 3000
Chicago, IL 60606
If to Company
:
Ventas, Inc.
111 S. Wacker, Ste. 4800
Chicago, IL 60606
Attention: VP Human Resources
With a copy to
Ventas, Inc.
10350 Ormsby Park Place, Suite 300
Louisville, KY 40223
Attn.: General Counsel
16.
Waiver of Breach
. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach
by either party.
17.
Entire Agreement; Amendment
. This instrument contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations and warranties between them, wither
written or oral, with respect to the subject matter hereof (excluding the Acquisition definitive
documents). No provisions of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in writing signed by the Executive and the Company.
23
18.
Severability and Partial Invalidity
. The various covenants and provisions of this
Agreement are intended to be severable and to constitute independent and distinct binding
obligations. If any covenant or provision of this Agreement is determined to be void and
unenforceable, in whole or in part, it shall not be deemed to affect or impair the validity of any
other covenant or provision or part thereof, and such covenant or provision or part thereof shall
be deemed modified to the extent required to permit enforcement. Without limiting the generality
of the foregoing, if the scope of any covenant contained in this Agreement is too broad to permit
enforcement to its full extent, such covenant shall be enforced to the maximum extent permitted by
law, and the parties hereby agree that such scope may be judicially modified accordingly.
19.
Governing Law
. This Agreement shall be construed in accordance with and governed
by the laws of the State of Illinois, without regards to the conflict of laws provisions of any
jurisdiction.
20.
Fees and Costs
. Upon, and subject to the occurrence of, Closing, the Company
agrees to pay, or to reimburse senior management of Lillibridge, including the Executive, for their
reasonable out of pocket legal and financial planning expenses incurred solely in connection with
and related to the preparation and negotiation of their applicable employment and related
agreements (including this Agreement), subject to a cap of $150,000 in the aggregate for all such
Lillibridge senior management.
21.
Headings
. The headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
22.
Survival
. The rights and obligations of the Executive and the Company under
Sections 9
and
10
of this Agreement shall survive the termination of the Executives employment and
the termination or expiration of this Agreement. Subject to
Section 9(e)
, it is specifically
acknowledged and agreed to by the parties that the rights and obligations of the Executive and the
Company under
Sections 9
and
10
of this Agreement are not conditioned upon Closing and shall become
effective upon execution of this Agreement. All other rights and obligations of the Executive and
the Company (including those rights in
Sections 7
and
8
) shall survive the termination or
expiration of this Agreement only to the extent that they expressly contemplate future performance
and remain unperformed.
23.
Counterparts
. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
24.
Compliance With Section 409A
. All payments pursuant to this Agreement shall be
subject to the provisions of this
Section 24
. Notwithstanding anything herein to the contrary,
this Agreement is intended to be interpreted and operated to the fullest extent possible so that
the payments and benefits under this Agreement either shall be exempt from or shall comply with the
requirements of the requirements of Section 409A;
provided
,
however
, that,
notwithstanding anything to the contrary in this Agreement, in no event shall the Company be liable
to the Executive for or with respect to any taxes, penalties or interest which may be imposed upon
the Executive pursuant to Section 409A.
(a)
Payments to Specified Employees
. To the extent that any payment or benefit
pursuant to this Agreement constitutes a deferral of compensation subject to Section 409A (after
taking into account to the maximum extent possible any applicable exemptions) (a
409A Payment
)
treated as payable upon Separation from Service, then, if on the date of the Executives Separation
from Service, the Executive is a Specified Employee, then to the extent required for the Executive
not to incur additional taxes pursuant to Section 409A, no such 409A Payment shall be made to the
Executive earlier than the earlier of (i) six (6) months after the Executives Separation from
Service; or (ii) the date of his death. Should this
Section 24
result in the delay
24
of benefits,
any such benefit shall be made available to the Executive by the Company during such delay period
at the Executives expense. Should this
Section 24
result in a delay of payments or benefits to
the Executive, on the first day any such payments or benefits may be made without incurring
additional tax pursuant to Section 409A (the
409A Payment Date
), the Company shall make such
payments and provide such benefits as provided for in this Agreement, provided that any amounts
that would have been payable earlier but for the application of this
Section 24
, as well as any
reimbursement of the amount the Executive paid for benefits pursuant to the preceding sentence,
shall be paid in a lump-sum on the 409A Payment Date along with accrued interest at the rate of
interest published in the
Wall Street Journal
as the prime rate (or equivalent) on the date that
payments or benefits, as applicable, to the Executive should have been made under this Agreement.
For purposes of this
Section 24
, the term Specified Employee shall have the meaning set forth in
Section 409A, as determined in accordance with the methodology established by the Company. For
purposes of determining whether a Separation from Service has occurred for purposes of Section
409A, to the extent permissible under Section 409A, subsidiaries and affiliates of the Company are
those included by using a twenty percent (20%) standard to define the controlled group under Code
Section 1563(a) in lieu of the fifty percent (50%) default rule. In addition, for purposes of
determining whether a Separation from Service has occurred for purposes of Section 409A, a
Separation from Service is deemed to include a reasonably anticipated permanent reduction in the
level of services performed by the Executive to less than fifty (50%) of the average level of
services performed by the Executive during the immediately preceding 36-month period.
(b)
Reimbursements
. For purposes of complying with Section 409A and without extending
the payment timing otherwise provided in this Agreement, taxable reimbursements under this
Agreement, subject to the following sentence and to the extent required to comply with Section
409A, will be made no later than the end of the calendar year following the calendar year the
expense was incurred. To the extent required to comply with Section 409A, any taxable
reimbursements and any in-kind benefit under this Agreement will be subject to the following:
(a) payment of such reimbursements or in-kind benefits during one calendar year will not affect the
amount of such reimbursement or in-kind benefits provided during any other calendar year (other
than for medical reimbursement arrangements as excepted under Treasury Regulations
§1.409A-3(i)(1)(iv)(B) solely because the arrangement provides for a limit on the amount of
expenses that may be reimbursed under such arrangement over some or all of the period the
arrangement remains in effect); (b) such right to reimbursement or in-kind benefits is not subject
to liquidation or exchange for another form of compensation to the Executive and (c) the right to
reimbursements under this Agreement will be in effect for the lesser of the time specified in this
Agreement or ten years plus the lifetime of the Executive. Any taxable reimbursements or in-kind
benefits shall be treated as not subject to Code Section 409A to the maximum extent provided by
Treasury Regulations §1.409A-1(b)(9)(v) or otherwise under Section 409A.
25
(c)
Release
. Subject to
Section 24(a)
, (i) to the extent that the Executive is
required to execute and deliver a Release to receive a 409A Payment and (ii) this Agreement
provides for such 409A Payment to be provided prior to the thirtieth (30
th
) day
following the Executives Separation from Service, such 409A Payment will be provided upon the
thirtieth (30
th
) day following the Executives Separation from Service provided the
Release in the form mutually agreed upon between the Executive and the Company or in the form set
forth in Attachment A has been executed, delivered and effective prior to such time. If a Release
is required for a 409A Payment and such Release is not executed, delivered and is effective by the
thirtieth (30
th
) day following the Executives Separation from Service, such 409A
Payment shall not be provided to the Executive to the extent that providing such 409A Payment would
cause such 409A Payment to fail to comply with Section 409A. To the extent that any payments or
benefits under this Agreement are intended to be exempt from Section 409A as a short-term deferral
pursuant to Treasury Regulations §1.409A-1(b)(4) or any successor thereto and require the Executive
to provide a Release to the Company to obtain such payments or benefits, any Release required for
such payment or benefit must be provided in the form mutually agreed upon between the Executive and
the Company or in the form set forth in Attachment A no later than March 7th of the calendar year
following the calendar year of the Executives Separation from Service.
(d)
No Acceleration; Separate Payments
. No 409A Payment payable under this Agreement
shall be subject to acceleration or to any change in the specified time or method of payment,
except as otherwise provided under this Agreement and consistent with Section 409A. If under this
Agreement, a 409A Payment is to be paid in two or more installments, for purposes of Section 409A,
each installment shall be treated as a separate payment.
(e)
Cooperation
. If any compensation or benefits provided by this Agreement may
result in the application of Section 409A, the Company shall, in consultation with the Executive,
modify the Agreement in the least restrictive manner necessary in order to either exclude such
compensation from the definition of deferred compensation within the meaning of such Section 409A
or comply with the provisions of Section 409A and without any diminution in the value of the
payments or benefits to the Executive. This
Section 24
is not intended to impose any restrictions
on payments or benefits to the Executive other than those otherwise set forth in this Agreement or
required for the Executive not to incur additional tax under Section 409A and shall be interpreted
and operated accordingly. The Company to the extent reasonably requested by the Executive shall
modify this Agreement to effectuate the intention set forth in the preceding sentence.
26
25.
Interpretation and Construction
. The parties hereto participated jointly in the
negotiation and preparation of this Agreement, and each party has had the opportunity to obtain the
advice of legal counsel and to review and comment upon this Agreement. Accordingly, it is agreed
that no rule of construction shall apply against any party or in favor of any party. This
Agreement shall be construed as if the parties jointly prepared this Agreement, and any uncertainty
or ambiguity shall not be interpreted against one party and in favor of the other. In this
Agreement, unless otherwise stated or the context otherwise requires, the following uses apply:
(a)
including
means
including, but not limited to;
(b) all references to sections are to
sections in this Agreement unless otherwise specified; (c) all words used in this Agreement will be
construed to be of such gender or number as the circumstances and context require; (d) the captions
and headings of sections appearing in this Agreement have been inserted solely for convenience of
reference and shall not be considered a part of this Agreement nor shall any of them affect the
meaning or interpretation of this Agreement or any of its provisions; and (e) any reference to a
document or set of documents in this Agreement, and the rights and obligations of the parties under
any such documents, shall mean such document or documents as amended from time to time, and any and
all modifications, extensions, renewals, substitutions or replacements thereof.
26.
WAIVER
.
TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT SUCH PARTY HAS
BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL SELECTED OF SUCH PARTYS OWN FREE WILL AND THAT IT HAS DISCUSSED THIS WAIVER WITH
SUCH LEGAL COUNSEL, OR HAS HAD ADEQUATE OPPORTUNITY TO SEEK SUCH COUNSEL. EACH PARTY FURTHER
ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, AND
(ii) THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE OTHER PARTIES TO ENTER INTO THIS AGREEMENT.
[The Remainder of this Page Intentionally Left Blank]
27
IN WITNESS WHEREOF
, the parties have executed this Agreement as of the date first above
written.
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VENTAS, INC.
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|
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By:
|
/s/ T. Richard Riney
|
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|
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Name:
|
T. Richard Riney
|
|
|
|
Its:
|
Executive Vice President,
Chief Administrative Officer
and General Counsel
|
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/s/ Todd W. Lillibridge
|
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Todd W. Lillibridge
Executive
|
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Signature Page to Employment Agreement
Attachment A
Employment Agreement by and between Ventas, Inc. and
Todd W. Lillibridge
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL
RELEASE (the
Release
) is made and entered into as of this _____
day of [
, 20___], by
and between [
]
(
_____
) and its successors
(collectively referred to herein as the
Company
), and Todd W. Lillibridge (the
Executive
).
WHEREAS, the Executive and the Company have entered into an Employment Agreement dated
the _____
day of
,
_____
(
Employment Agreement
); and
WHEREAS, the Executives employment with the Company and the Employment Agreement have been
terminated,
NOW THEREFORE, in consideration for receiving benefits and severance under the Employment
Agreement and in consideration of the representations, covenants and promises set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1.
Termination of Employment
. The Executive and the Company agree that the
Executives employment with the Company terminated effective
.
2.
Severance Benefits
. In consideration for the promises made in this Release, the
Company agrees to provide the Executive [
] [to include all cash payments or
benefits due to the Executive under the terms of the Employment Agreement, as may be applicable],
payable on the [_____] (_____) day following the Date of Termination, after the execution by the
Executive (without subsequent revocation) of this Release [Modify for lump-sum or installment
payments, as may be applicable]. The Executive acknowledges that the [severance payment and health
insurance benefits] are being provided by the Company as consideration for the Executive entering
into this Agreement, including the release of claims and waiver of rights provided for herein. The
Executive acknowledges that the [severance payment and health insurance benefits] shall be subject
to all applicable withholding and reporting requirements.
3.
General Release
. The Executive, with full understanding of the contents and legal
effect of this Release and having the right and opportunity to consult with his counsel, releases
and discharges the Company, its shareholders, officers, directors, supervisors, managers,
employees, agents, representatives, attorneys, parent companies, divisions, subsidiaries and
affiliates, and all related entities of any kind or nature, and its and their predecessors,
successors, heirs, executors, administrators, and assigns (collectively, the
Company Released
Parties
) from any and all claims, actions, causes of action, grievances, suits, charges, or
complaints of any kind or nature whatsoever, that he ever had or now has, whether fixed or
contingent, liquidated or unliquidated, known or unknown, suspected or unsuspected, and whether
arising in tort, contract, statute, or equity, before any federal, state, local, or private court,
agency, arbitrator, mediator, or other entity, regardless of the relief or remedy, arising prior to
the execution of this Release. Without limiting the generality of the foregoing, it being the
intention of the parties to make this Release as broad and as general as the law permits, this
Release specifically includes any and all subject matters and claims arising from any alleged
violation by the Released Parties under the United States Constitution, the constitution of any
state, the Age Discrimination in Employment Act of 1967, as amended; Title VII of the Civil Rights
Act of 1964, as amended; the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991
(42 U.S.C. § 1981); the Rehabilitation Act of 1973, as amended; the Executive Retirement Income
Security Act of 1974, as amended; the Illinois Human Rights Act, as amended; the Illinois Personnel
Record Review Act, as amended, and other similar state or local laws; the Americans with
Disabilities Act; the Worker Adjustment and Retraining Notification Act; the Equal Pay Act;
Executive Order 11246; Executive Order 11141; and any other statutory claim, employment or other
contract or implied contract claim, claim for equity in the Company, or common law claim for
wrongful discharge, breach of an implied covenant of good faith and fair dealing, defamation, or
invasion of privacy arising out of or involving his employment with the Company, the termination of
his employment with the Company, or involving any continuing effects of his employment with the
Company or termination of employment with the Company;
provided, however
, that nothing herein
waives or releases the Executives rights to which the Executive may be entitled under a Company
sponsored tax qualified retirement or savings plan, to any rights of the Executive to
indemnification under the Articles of Incorporation or by-laws of the Company or other agreement
between the Executive and the Company, to any rights of the Executive under any directors and
officers liability insurance policy maintained by the Company, nor to any payments or benefits the
Company is required to pay or provide pursuant to the terms of this Release.
THE UNDERSIGNED ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY LEGAL COUNSEL AND
IS FAMILIAR WITH THE PROVISIONS OF ANY APPLICABLE STATE CIVIL CODE (OR ANY
SIMILAR PROVISION OF ANY STATE LAW, WHICH MAY BE APPLICABLE), WHICH MAY
PROVIDE AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION (OR APPLICABLE CODE
SECTIONS OR LAW), HEREBY EXPRESSLY WAIVES ANY RIGHTS HE MAY HAVE THEREUNDER,
AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR
EFFECT.
2
4.
Covenant Not to Sue
. The Executive agrees not to bring, file, charge, claim, sue
or cause, assist, or permit to be brought, filed, charged or claimed any action, cause of action,
or proceeding regarding or in any way related to any of the claims described in Paragraph 3 hereof,
and further agrees that this Release is, will constitute and may be pleaded as, a bar to any such
claim, action, cause of action or proceeding. If any government agency or court assumes
jurisdiction of any charge, complaint, or cause of action covered by this Release, the Executive
will not seek and will not accept any personal equitable or monetary relief in connection with such
investigation, civil action, suit or legal proceeding.
5.
Severability
. If any provision of this Release shall be found by a court to be
invalid or unenforceable, in whole or in part, then such provision shall be construed and/or
modified or restricted to the extent and in the manner necessary to render the same valid and
enforceable, or shall be deemed excised from this Release, as the case may require, and this
Release shall be construed and enforced to the maximum extent permitted by law, as if such
provision had been originally incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case may be. The parties further
agree to seek a lawful substitute for any provision found to be unlawful; provided, that, if the
parties are unable to agree upon a lawful substitute, the parties desire and request that a court
or other authority called upon to decide the enforceability of this Release modify the Release so
that, once modified, the Release will be enforceable to the maximum extent permitted by the law in
existence at the time of the requested enforcement.
6.
Non-Disclosure
. The Executive agrees that he will keep the terms and amounts set
forth in this Release completely confidential and will not disclose any information concerning this
Releases terms and amounts to any person other than his attorney, accountant, tax advisor, or
immediate family.
7.
Representation
. The Executive hereby agrees that this Release is given knowingly
and voluntarily and acknowledges that:
(a)
this Release is written in a manner understood by the Executive;
(b)
this Release refers to and waives any and all rights or claims that the Executive may have
arising under the Age Discrimination in Employment Act, as amended;
(c)
the Executive has not waived any rights arising after the date of this Release;
(d)
the Executive has received valuable consideration in exchange for this Release in addition
to amounts Executive is already entitled to receive; and
(e)
the Executive has been advised to consult with an attorney prior to executing this
Release.
8.
Consideration and Revocation
. The Executive is receiving this Release on
_____, 20_____, and Executive shall be given twenty-one (21) days from receipt of this
Release to consider whether to sign the Release. The Executive agrees that changes or
modifications to this Release do not restart or otherwise extend the above twenty-one (21) day
period. Moreover, the Executive shall have seven (7) days following execution to revoke this
Release in writing to the Secretary of the Company and this Release shall not take effect until
those seven (7) days have ended.
3
9.
Amendment
. This Release may not be altered, amended, or modified except in writing
signed by both the Executive and the Company.
10.
Joint Participation
. The parties hereto participated jointly in the negotiation
and preparation of this Release, and each party has had the opportunity to obtain the advice of
legal counsel and to review and comment upon the Release. Accordingly, it is agreed that no rule
of construction shall apply against any party or in favor of any party. This Release shall be
construed as if the parties jointly prepared this Release, and any uncertainty or ambiguity shall
not be interpreted against one party and in favor of the other.
11.
Binding Effect; Assignment
. This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon the parties and their
respective successors, heirs, representatives and permitted assigns. Neither party may assign its
respective interests hereunder without the express written consent of the other party.
12.
Applicable Law and Disputes
. This Release shall be governed by, and construed in
accordance with, the state laws as provided in the Employment Agreement. The resolution of any
disputes under this Release shall be subject to the provisions of Section 10 of the Employment
Agreement.
13.
Execution of Release
. This Release may be executed in several counterparts, each
of which shall be considered an original, but which when taken together, shall constitute one
Release.
PLEASE READ THIS RELEASE AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING IT. THIS
RELEASE CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING THOSE UNDER THE FEDERAL AGE
DISCRIMINATION IN EMPLOYMENT ACT, AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING
DISCRIMINATION IN EMPLOYMENT.
If the Executive signs this Release less than twenty-one (21) days after he receives it from
the Company, he confirms that he does so voluntarily and without any pressure or coercion from
anyone at the Company.
IN WITNESS WHEREOF, the Executive and the Company have voluntarily signed this Agreement and
General Release on the date set forth above.
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The Company
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Todd W. Lillibridge
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By:
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Its:
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[
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Date
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Date
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4
Schedule 1
Consideration
$1,900,000.00
Exhibit 10.2
Published CUSIP Number:
CREDIT AND GUARANTY AGREEMENT
Dated as of April 26, 2006
among
VENTAS REALTY, LIMITED PARTNERSHIP,
as Borrower,
THE GUARANTORS REFERRED TO HEREIN,
THE LENDERS REFERRED TO HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Bank and Swingline Lender
CALYON NEW YORK BRANCH
and
CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents
MERRILL LYNCH & CO. INC.
and
UBS SECURITIES LLC,
as Co-Documentation Agents
DEUTSCHE BANK TRUST COMPANY AMERICAS,
BANK OF MONTREAL,
KEYBANK NATIONAL ASSOCIATION,
LASALLE BANK NATIONAL ASSOCIATION
and
MORGAN STANLEY BANK,
as Managing Agents
BANC OF AMERICA SECURITIES LLC
and
CALYON NEW YORK BRANCH,
as Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
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1
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Section 1.1 Definitions
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1
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Section 1.2 Accounting Terms
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27
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Section 1.3 Letter of Credit Amounts
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27
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Section 1.4 Other Interpretive Provisions
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27
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ARTICLE II THE LOANS
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28
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Section 2.1 Commitments
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28
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Section 2.2 Method of Borrowing
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30
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Section 2.3 Interest
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31
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Section 2.4 Payments; Evidence of Indebtedness
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32
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Section 2.5 Facility Fees, Letter of Credit Fees and Other Fees
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33
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Section 2.6 Termination and/or Reduction of the Total Revolving Committed Amount
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35
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Section 2.7 Prepayments
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35
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Section 2.8 Default Interest
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36
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Section 2.9 Continuation and Conversion of Loans
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37
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Section 2.10 Payments Generally; Administrative Agents Clawback
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38
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Section 2.11 Additional Provisions Relating to Letters of Credit
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39
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Section 2.12 Additional Provisions Relating to Swingline Loans
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45
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Section 2.13 Pro Rata Treatment
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46
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Section 2.14 Sharing of Payments
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47
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ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
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48
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Section 3.1 Taxes
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48
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Section 3.2 Illegality
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50
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Section 3.3 Inability to Determine Rates
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50
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Section 3.4 Increased Cost; Capital Adequacy; Reserves on Eurodollar Rate Loans
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51
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Section 3.5 Compensation for Losses
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52
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Section 3.6 Mitigation Obligations; Replacement of Lenders
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53
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Section 3.7 Survival Losses
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53
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES
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53
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Section 4.1 Existence and Power
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53
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Section 4.2 Authority and No Violation
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54
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Section 4.3 Governmental Approval; Other Consents
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55
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Section 4.4 Binding Agreements
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55
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Section 4.5 No Material Adverse Effect
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55
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Section 4.6 Financial Information
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55
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Section 4.7 Credit Parties
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55
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Section 4.8 Litigation; Judgments
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55
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Section 4.9 Federal Reserve Regulations
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56
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Section 4.10 Investment Company Act
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56
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Section 4.11 Taxes
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56
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Section 4.12 Compliance with ERISA
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56
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Section 4.13 Disclosure
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57
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Section 4.14 Environmental Matters
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57
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Section 4.15 Compliance with Laws
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57
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Page
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Section 4.16 No Default
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57
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Section 4.17 REIT Status
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57
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Section 4.18 Solvency
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58
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ARTICLE V CONDITIONS PRECEDENT
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58
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Section 5.1 Conditions Precedent to the Effectiveness of this Credit Agreement
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58
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Section 5.2 Conditions Precedent to Each Loan and Each Letter of Credit
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60
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ARTICLE VI AFFIRMATIVE COVENANTS
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61
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Section 6.1 Financial Statements
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61
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Section 6.2 Certificates; Other Information
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61
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Section 6.3 Notification
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63
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Section 6.4 Payment of Obligations
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64
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Section 6.5 Preservation of Existence, Etc.
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64
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Section 6.6 Maintenance of Properties
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64
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Section 6.7 Maintenance of Insurance
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64
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Section 6.8 Compliance with Laws
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64
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Section 6.9 Books and Records
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65
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Section 6.10 Inspection Rights
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65
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Section 6.11 Use of Proceeds
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65
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Section 6.12 Withdrawal or Addition of UAP Properties
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65
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Section 6.13 REIT Status
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66
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ARTICLE VII NEGATIVE COVENANTS
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66
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Section 7.1 Liens
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66
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Section 7.2 Investments
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66
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Section 7.3 Indebtedness
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66
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Section 7.4 Mergers and Dissolutions
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66
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Section 7.5 Dispositions
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67
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Section 7.6 Restricted Payments
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67
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Section 7.7 Change in Nature of Business
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67
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Section 7.8 Transactions with Affiliates
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67
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Section 7.9 Burdensome Agreements
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68
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Section 7.10 Financial Covenants
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68
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ARTICLE VIII EVENTS OF DEFAULT
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68
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ARTICLE IX GUARANTY
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71
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Section 9.1 The Guaranty
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71
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Section 9.2 Obligations Unconditional
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71
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Section 9.3 Reinstatement
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72
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Section 9.4 Certain Waivers
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73
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Section 9.5 Remedies
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73
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Section 9.6 Rights of Contribution
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73
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Section 9.7 Guaranty of Payment; Continuing Guaranty
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73
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ARTICLE X CASH COLLATERAL
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74
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Section 10.1 Cash Collateral Account
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74
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Section 10.2 Investment of Funds
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74
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Section 10.3 Remedies
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74
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ii
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Page
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ARTICLE XI ADMINISTRATIVE AGENT
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75
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Section 11.1 Appointment and Authorization of Administrative Agent
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75
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Section 11.2 Delegation of Duties
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75
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Section 11.3 Exculpatory Provisions
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75
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Section 11.4 Reliance by Administrative Agent
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76
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Section 11.5 Notice of Default
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76
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Section 11.6 Credit Decision; Disclosure of Information by Administrative Agent
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77
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Section 11.7 Administrative Agent in its Individual Capacity
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77
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Section 11.8 Successor Administrative Agent
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77
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Section 11.9 Administrative Agent May File Proofs of Claim
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79
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Section 11.10 Collateral and Guaranty Matters
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79
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Section 11.11 Other Agents; Arrangers and Managers
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79
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ARTICLE XII MISCELLANEOUS
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80
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Section 12.1 Amendments, Etc.
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80
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Section 12.2 Notices; Effectiveness; Electronic Communication
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81
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Section 12.3 No Waiver; Cumulative Remedies
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83
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Section 12.4 Expenses; Indemnity; Damage Waiver
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83
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Section 12.5 Payments Set Aside
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84
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Section 12.6 Successors and Assigns
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85
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Section 12.7 Confidentiality
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89
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Section 12.8 Set-off
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89
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Section 12.9 Interest Rate Limitation
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90
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Section 12.10 Counterparts; Effectiveness
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90
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Section 12.11 Integration
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90
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Section 12.12 Survival of Representations and Warranties
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90
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Section 12.13 Severability
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91
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Section 12.14 Replacement of Lenders
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91
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Section 12.15 Affirmation
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91
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Section 12.16 No Advisory or Fiduciary Responsibility
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92
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Section 12.17 Patriot Act; Anti-Money Laundering
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92
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Section 12.18 GOVERNING LAW
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92
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Section 12.19 WAIVER OF RIGHT TO TRIAL BY JURY
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93
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iii
Schedules
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1.1
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Lenders and Commitments
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2.11(b)
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Existing Letter of Credit
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4.1(a)
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List of Limited Partners of Borrower
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4.2
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Exceptions to Authority and No Violation Representation and Warranty
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4.7
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Credit Parties and Their Subsidiaries
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12.2
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Notice Addresses
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12.6
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Processing and Recordation Fees
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Exhibits
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2.1
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Form of Borrowing Base Certificate
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2.2
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Form of Loan Notice
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2.4(e)-1
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Form of Revolving Note
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2.4(e)-2
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Form of Swingline Note
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2.7(b)
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Form of Notice of Prepayment
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5.1(g)
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Form of Closing Certificate
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6.2(a)
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Form of Compliance Certificate
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6.12
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Form of Joinder Agreement
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12.6(b)
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Form of Assignment and Assumption
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iv
CREDIT AND GUARANTY AGREEMENT, dated as of April 26, 2006 (as amended, restated, extended,
supplemented, renewed, replaced or otherwise modified from time to time, this
Credit
Agreement
), among VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership (the
Borrower
), VENTAS, INC., a Delaware corporation (
Ventas
), and certain
Subsidiaries of Ventas identified herein, as Guarantors, the Lenders identified herein, including
Bank of America, N.A., as Issuing Bank for the Letters of Credit hereunder, Bank of America, N.A.
as Administrative Agent, Calyon New York Branch and Citicorp North America, Inc., as Co-Syndication
Agents, and Merrill Lynch & Co. Inc. and UBS Securities LLC, as Co-Documentation Agents.
INTRODUCTORY STATEMENT
A $300,000,000 revolving credit facility was established in favor of the Borrower pursuant to
the terms of that certain Third Amended and Restated Credit, Security and Guaranty Agreement dated
as of September 8, 2004 among the Borrower, the guarantors identified therein and the lenders
identified therein (as amended by that certain Amendment No. 1 dated as of May 6, 2005 and as
otherwise modified or amended from time to time, the
Prior Credit Agreement
).
The Borrower has requested that the Administrative Agent, on behalf of the Lenders under the
Prior Credit Agreement, release all collateral previously pledged in connection with the Prior
Credit Agreement, and has requested certain modifications to the Prior Credit Agreement, including,
among other things, an increase in the principal amount of the revolving credit facility to
$500,000,000, and the Administrative Agent and the Lenders have agreed to such modifications on the
terms and conditions set forth herein.
This Credit Agreement supersedes and replaces in its entirety the Prior Credit Agreement.
To provide assurance for the repayment of the Loans hereunder and the other Obligations of the
Credit Parties, the Borrower will, among other things, provide or cause to be provided to the
Administrative Agent, for the benefit of the holders of the Obligations so guaranteed, a guaranty
of the Obligations by each of the Guarantors pursuant to
Article IX
hereof;
Subject to the terms and conditions set forth herein, the Administrative Agent is willing to
act as administrative agent for the Lenders, the Issuing Bank is willing to issue Letters of Credit
as provided herein, the Swingline Lender is willing to make Swingline Loans as provided herein, and
each of the Revolving Lenders is willing to make Revolving Loans and to participate in Letters of
Credit to the Borrower as provided herein in an aggregate amount at any one time outstanding not in
excess of such Lenders Revolving Commitment hereunder.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1
Definitions
.
For the purposes hereof unless the context otherwise requires, all references to Articles and
Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and
Schedules to, this Credit Agreement, terms defined in the Introductory Statement shall have
the meanings provided therein, the following terms shall have the meanings indicated:
Acquisition
by any Person, shall mean the purchase or acquisition by such
Person of any Capital Stock in or any asset of another Person, whether or not involving a
merger or consolidation with such other Person.
Adjusted Base Rate
shall mean the Base Rate
plus
the
Applicable Percentage.
Adjusted Eurodollar Rate
shall mean the Eurodollar Rate
plus
the
Applicable Percentage.
Administrative Agent
shall mean Bank of America, in its capacity as
administrative agent for the Lenders hereunder or such successor Administrative Agent as may
be appointed pursuant to
Section 11.8
hereof.
Administrative Agents Office
shall mean the Administrative Agents address
as set forth on
Schedule 12.2
, or such other address as the Administrative Agent may
from time to time change by notice thereof given to the Borrower and the Lenders in
accordance with
Section 12.2(d)
.
Administrative Questionnaire
means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
Affiliated Group
shall mean a group of Persons, each of which is an Affiliate
of some other Person in the group.
Agent Parties
shall have the meaning given to such term in
Section
12.2(c)
.
Applicable Percentage
shall mean, for any applicable period, (a) a per annum
rate based on, subject to
clause (b)
below, the Consolidated Total Leverage Ratio as
follows:
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Revolving Loans
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Applicable
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Applicable Percentage
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Percentage for
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Pricing
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Consolidated Total
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for Eurodollar Rate
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Base Rate
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Level
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Leverage Ratio
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Loans
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Loans
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I
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greater than 55%
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1.25
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%
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0.00
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%
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II
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greater than 50%
but less than or
equal to 55%
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1.05
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%
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0.00
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%
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III
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greater than 45%
but less than or
equal to 50%
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0.90
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%
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0.00
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%
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IV
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greater than 35%
but less than or
equal to 45%
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0.75
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%
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0.00
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%
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V
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less than or equal to 35%
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0.50
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%
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0.00
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%
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Any increase or decrease in the Applicable Percentage resulting from a change in the
Consolidated Total Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is required to be delivered pursuant
to
Section 6.2(b)
;
provided
,
however
, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then Pricing Level I
shall apply as of the first Business Day after the date on which such Compliance Certificate
was required to have been delivered until the Business Day following the delivery of the
Compliance Certificate. The Applicable Percentage in effect from the Closing Date through
the first Business Day following delivery of the Compliance Certificate pursuant to
Section 6.2(a)
with respect to the fiscal quarter ending March 31, 2006 shall be
determined based upon Pricing Level IV.
2
(b) In the event that the Borrower achieves an investment grade Debt Rating by S&P or
Moodys, the Borrower may, upon written notice to the Administrative Agent, elect to convert
to the ratings-based pricing grid set forth below. Any such election to the ratings-based
pricing grid below may be made only one time after the Closing Date and shall be
irrevocable.
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Revolving Loans
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Applicable Percentage
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Applicable
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|
Pricing
|
|
|
Debt Rating
|
|
for Eurodollar Rate
|
|
|
Percentage for
|
|
Level
|
|
|
S&P/Moodys
|
|
Loans
|
|
|
Base Rate Loans
|
|
|
1
|
|
|
BBB-/Baa3
|
|
|
0.90
|
%
|
|
|
0.00
|
%
|
|
2
|
|
|
BBB/Baa2
|
|
|
0.80
|
%
|
|
|
0.00
|
%
|
|
3
|
|
|
BBB+/Baa1
|
|
|
0.65
|
%
|
|
|
0.00
|
%
|
Initially, the Applicable Percentage shall be determined based upon the Debt Rating
effective at the time of the Borrowers election to convert to a ratings-based pricing grid.
Thereafter, each change in the Applicable Percentage resulting from a publicly announced
change in the Debt Rating shall be effective, in the case of an upgrade, during the period
commencing on the date of delivery by the Borrower to the Administrative Agent of notice
thereof and ending on the day immediately preceding the effective date of the next such
change and, in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the day immediately preceding the effective date
of the next such change. If the Borrower achieves an investment grade Debt Rating by both
S&P and Moodys and the respective Debt Ratings issued by S&P and Moodys differ by one
level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt
Rating for Pricing Level 3 being the highest and the Debt Rating for Pricing Level 1 being
the lowest). If the Borrower achieves an investment grade Debt Rating by both S&P and
Moodys, but there is a split in Debt Ratings of more than one level, then the Pricing Level
that is one level higher than the Pricing Level of the lower Debt Rating shall apply. If
the Borrower has only one investment grade Debt Rating, then that Debt Rating shall apply.
If the Borrower has elected to convert to a ratings-based pricing grid as provided above but
fails to maintain an investment grade Debt Rating by at least one of S&P or Moodys, then
the Applicable Percentage shall be determined pursuant to
clause (a)
above during
the period commencing on the date of the public announcement thereof and ending on the
Revolving Commitment Termination Date.
Approved Fund
shall mean any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
Assignee Group
means two (2) or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment advisor.
3
Assignment and Assumption
shall mean an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is required by
Section 12.6(b))
, and accepted by the Administrative Agent, in substantially the
form of
Exhibit 12.6(b)
or any other form approved by the Administrative Agent.
Authorized Officer
shall mean, with respect to the Borrower or any Guarantor,
the president, vice president, chief financial officer, controller or other chief accounting
officer, secretary, treasurer or general counsel of the general partner or managing member
of such entity or of such entity itself, as the case may be, and, solely for purposes of
notices given pursuant to
Article II
, any other officer or employee of the Borrower
so designated by any of the foregoing officers in a notice to the Administrative Agent.
Bank of America
shall mean Bank of America, N.A., and its successors.
Bankruptcy Code
shall mean the Bankruptcy Reform Act of 1978, as heretofore
and hereafter amended, as codified at 11 U.S.C. § 101
et
seq
., and the rules
and regulations promulgated thereunder, or any successor provision thereto.
BBA LIBOR
shall have the meaning given to such term in the definition of
Eurodollar Base Rate.
Base Rate
shall mean a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate in effect for the relevant period
plus
one half of one
percent (0.5%) and (b) the Prime Rate in effect for the relevant period.
Base Rate Loan
shall mean a Loan based on the Base Rate in accordance with
the provisions of
Article II
hereof.
Board
shall mean the Board of Governors of the Federal Reserve System of the
United States of America, or any successor thereto.
Board of Directors
shall mean (a) with respect to a corporation, the Board of
Directors of the corporation; (b) with respect to a partnership, the Board of Directors of
the general partner of the partnership or the board or committee of the general partner of
the partnership serving a similar function; and (c) with respect to any other Person, the
board or committee of such Person serving a similar function.
Borrower
shall have the meaning given to such term in the initial paragraph
of this Credit Agreement, and its permitted successors.
Borrowing
shall mean a group of Loans of a single Interest Rate Type and as
to which a single Interest Period is in effect on a single day.
Borrowing Base
shall mean, at any time, an amount equal to sixty percent
(60%) of the Consolidated UAP Property Value.
Borrowing Base Certificate
shall mean a certificate delivered to the
Administrative Agent pursuant to
Section 6.2(c
) identifying the UAP Properties,
providing a summary of the Consolidated UAP Property Value relating thereto and stating the
Consolidated Unencumbered NOI from UAP Properties attributable to each UAP Property, in
form, substance and detail
reasonably satisfactory to the Administrative Agent. A form of Borrowing Base
Certificate is provided in
Exhibit 2.1
.
4
Brookdale
shall mean any of Brookdale Senior Living, Inc. and its
Subsidiaries and Affiliates.
Business Day
shall mean any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the applicable Laws of, or are in fact
closed in, the state where the Administrative Agents Office is located and, if such day
relates to any Eurodollar Rate Loan, any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
Capital Stock
means (a) in the case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital stock, (c) in
the case of a partnership, partnership interests (whether general or limited), (d) in the
case of a limited liability company, membership interests and (e) any other interest or
participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
Capitalization Rate
shall mean (i) eight percent (8.0%) in the case of
non-government reimbursed properties and assets and (ii) nine and three-quarters percent
(9.75%) in the case of government reimbursed properties and assets.
Cash Collateral Account
shall have the meaning given to such term in
Section 10.1
hereof.
Cash Collateral Bank
shall have the meaning given to such term in
Section
10.1
hereof.
Cash Collateralize
means to pledge and deposit with or deliver to the Cash
Collateral Bank, for the benefit of the Issuing Bank and the Lenders, as collateral for the
LOC Obligations, cash or deposit account balances pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the Issuing Bank (which
documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings.
Cash Equivalents
means (a) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) interest bearing or
discounted obligations of United States federal agencies and government-sponsored entities,
or pools of such instruments offered by banks which have a long-term debt rating of AA or
better by S&P or Aa2 by Moodys, including, Federal Home Loan Mortgage Corporation
participation sale certificates, Government National Mortgage Association modified pass
through certificates, Federal National Mortgage Association bonds and notes and Federal
Farm Credit System securities, (c) Eurodollar certificates of deposit, bankers acceptances,
floating rate notes, other money market instruments and letters of credit each issued by
banks which have a long-term debt rating of AA or better by S&P or Aa2 by Moodys, (d) loan
participations, each of which at the time of investment is rated at least AA by S&P, and/or
Aa2 by Moodys and/or unconditionally guaranteed by an entity having an AA rating by S&P, an
Aa2 rating by Moodys, or better rated credit, (e) real estate loan pool participations,
guaranteed by an entity with an AA rating or better by S&P or an Aa2 rating or better by
Moodys and shares of any mutual fund that has its assets primarily invested in the types of
investments referred to in
clauses (a)
through
5
(d)
above, (f)
Dollar-denominated time deposits and certificates of deposit of (i) any Lender,
(ii) any domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moodys is at least P-1 or the equivalent
thereof, in each case with maturities of not more than one year from the date of
acquisition, (g) commercial paper and variable or fixed rate notes issued by any bank
referred to in
clause (f)(iii)
above (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moodys
and maturing within one year of the date of acquisition, (h) repurchase agreements entered
into by any Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States in which such Person shall
have a perfected first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (i) Investments (classified in accordance with GAAP as current
assets) in money market investment programs registered under the Investment Company Act of
1940 that are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the character
described in the foregoing subclauses hereof.
Change in Control
shall mean either (a) a Person or an Affiliated Group shall
acquire thirty-five percent (35%) or more of any class of the voting stock of Ventas, and
the Borrower shall not have repaid all of the outstanding Obligations in full in cash, Cash
Collateralized all outstanding Letters of Credit in an amount equal to one hundred percent
(100%) of the then current LOC Obligations and terminated the Commitments within
forty-five (45) days after such Person or Affiliated Group shall have acquired such
percentage of such stock; or (b) Ventas shall cease to be the sole general partner of the
Borrower; or (c) Ventas shall cease to own sixty percent (60%) or more of the partnership
interests in the Borrower.
Change in Law
shall mean the occurrence, after the date of this Credit
Agreement, of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental Authority or
(c) the making or issuance of any request, guideline or directive (having the force of law)
by any Governmental Authority.
Closing Date
shall mean the date on which the conditions precedent set forth
in
Section 5.1
hereof have been satisfied or waived.
Code
shall mean the Internal Revenue Code of 1986, as codified at
26 U.S.C. § 1
et
seq
., and the rules and regulations promulgated thereunder,
or any successor provision thereto.
Commitment Period
shall mean the period from and including the Closing Date
to but not including the earlier of (a) the Revolving Commitment Termination Date or (b) the
date on which the Revolving Commitments terminate in accordance with the provisions of this
Credit Agreement.
Commitments
shall mean, collectively, the Revolving Commitments, the LOC
Commitment and the Swingline Commitment.
Compensation Period
shall have the meaning given to such term in
Section
2.13(b)(ii)(B)
.
Compliance Certificate
means a certificate substantially in the form of
Exhibit 6.2(a)
.
6
Consolidated Adjusted Net Worth
shall mean, as of any day for the
Consolidated Group, the sum of (a) total stockholders equity or net worth
plus
(b)
accumulated depreciation, in each case, determined on a consolidated basis in accordance
with GAAP; but excluding, in any event, for purposes hereof, unrealized gains and losses on
Interest Rate Protection Agreements, Currency Agreements or other interest rate derivatives
reported on a consolidated balance sheet as accumulated other comprehensive income or loss.
Consolidated EBITDA
shall mean, for any period for the Consolidated Group,
the sum of Consolidated Net Income
plus
, without duplication, to the extent deducted
in computing Consolidated Net Income, (a) amortization and depreciation expense, (b) other
non-cash charges as are reasonably acceptable to the Administrative Agent and the Required
Lenders, (c) Consolidated Interest Expense and (d) provision for taxes, in each case
determined on a consolidated basis in accordance with GAAP; but excluding, in any event, (i)
extraordinary gains and losses and related tax effects thereon, (ii) non-cash impairment
charges, (iii) non-cash stock or option based compensation and (iv) other non-cash gains
and losses and related tax effects thereon as are reasonably acceptable to the
Administrative Agent and the Required Lenders, and including, in any event, a pro rata share
of the foregoing items and components attributable to interests in Joint Ventures. Except
as otherwise expressly provided, the applicable period shall be the four (4) consecutive
fiscal quarters ending as of the date of determination.
Consolidated Fixed Charge Coverage Ratio
shall mean the ratio of Consolidated
EBITDA to Consolidated Fixed Charges.
Consolidated Fixed Charges
shall mean, for any period for the Consolidated
Group, the sum of, without duplication, (a) Consolidated Interest Expense,
plus
(b)
scheduled principal payments on Consolidated Funded Debt (excluding any balloon or final
payment) during the applicable period,
plus
(c) dividends and distributions on
preferred stock of Ventas, if any, in each case determined on a consolidated basis in
accordance with GAAP; but excluding, in any event, (i) gains and losses from unwinding or
break-funding Interest Rate Protection Agreements, (ii) write-offs of unamortized deferred
financing fees, (iii) prepayment fees, premiums and penalties, and (iv) other unusual items
as are reasonably acceptable to the Administrative Agent and the Required Lenders. Except
as otherwise expressly provided, the applicable period shall be the four (4) consecutive
fiscal quarters ending as of the date of determination.
Consolidated Funded Debt
shall mean, as of any day, Funded Debt for the
Consolidated Group, determined on a consolidated basis in accordance with GAAP, but
including, in any event, a pro rata share of the foregoing items and components attributable
to interests in Joint Ventures.
Consolidated Gross Asset Value
shall mean, as of any day for the Consolidated
Group, the sum of (a) unrestricted cash, restricted cash to the extent a corresponding
liability is included in Consolidated Total Liabilities, restricted cash held by third party
lenders as collateral for indebtedness, and Cash Equivalents,
plus
(b) an amount
equal to the quotient of Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters most recently ended
divided
by the Capitalization Rate,
plus
(c)
one hundred percent (100%) of the book value of all development in progress, including land,
plus
(d) one hundred percent (100%) of the book value of other non-real property
assets other than goodwill and other intangible assets, in each case determined on a
consolidated basis in accordance with GAAP, but including, in any event, a pro rata share of
the foregoing items and components attributable to interests in Joint Ventures;
provided
,
however
, that for purposes of
clause (b)
, Acquisitions
will be valued for the period of four (4) consecutive
fiscal quarters following the date of Acquisition at the greater of (i) 100% of the
purchase price or Acquisition cost thereof, or (ii) the quotient of the portion of
Consolidated EBITDA for a period of four (4) consecutive fiscal quarters attributed to the
Acquisition on a Pro Forma Basis
divided
by the Capitalization Rate.
7
Consolidated Group
shall mean Ventas and any of its Subsidiaries determined
on a consolidated basis in accordance with GAAP.
Consolidated Interest Expense
shall mean, for any period for the Consolidated
Group, interest expense determined in accordance with GAAP, but including, in any event, (i)
the interest component under capital leases and the implied interest component under
securitization transactions and (ii) a pro rata share of the foregoing items and components
attributable to interests in Joint Ventures, and excluding, in any event, amortization of
deferred financing fees, amortization of debt discounts and swap breakage costs. Except as
otherwise expressly provided, the applicable period shall be the four (4) consecutive fiscal
quarters ending as of the date of determination.
Consolidated Net Income
shall mean, for any period for the Consolidated
Group, net income or loss determined on a consolidated basis in accordance with GAAP; but
including, in any event, a pro rata share of the foregoing items and components attributable
to interests in Joint Ventures, and excluding, in any event, (a) the income or loss of any
Person that is not a member of the Consolidated Group in which any member of the
Consolidated Group has an equity investment or comparable interest, except to the extent of
the amount of dividends or other distributions actually paid to members of the Consolidated
Group by such Person during such period, (b) the income or loss of any Person accrued prior
to the date that it became a member of the Consolidated Group or that such Persons assets
were acquired by a member of the Consolidated Group (except as otherwise required in
connection with
Section 1.2
), and (c) any net after tax gains or losses attributable
to sales of non-current assets out of the ordinary course of business and write-downs of
non-current assets in anticipation of losses to the extent they have decreased net income.
Except as otherwise expressly provided, the applicable period shall be the four (4)
consecutive fiscal quarters ending as of the date of determination.
Consolidated Secured Debt
shall mean the aggregate principal amount of
Consolidated Funded Debt that is secured by a mortgage, deed of trust, lien, pledge,
encumbrance or other security interest on property owned or leased by a member of the
Consolidated Group, but including, in any event, a pro rata share of the foregoing items and
components attributable to interests in Joint Ventures.
Consolidated Secured Debt Leverage Ratio
shall mean the ratio of Consolidated
Secured Debt to Consolidated Gross Asset Value.
Consolidated Total Leverage Ratio
shall mean the ratio of Consolidated Total
Liabilities to Consolidated Gross Asset Value.
Consolidated Total Liabilities
shall mean, as of any day for the Consolidated
Group, all liabilities determined on a consolidated basis in accordance with GAAP (subject
to the inclusions, exclusions and limitations set forth in the definition of Funded Debt
hereunder), but including, in any event, (a) all Consolidated Funded Debt, (b) accounts
payable arising in the ordinary course of business and payable in accordance with customary
trade terms, (c) dividends which have been declared or accrued but not yet paid, and (d) a
pro rata share of the foregoing items and components attributable to interests in Joint
Ventures, and excluding, in any event, (i)
deferred income taxes, (ii) liabilities arising from the unwinding or break-funding of
Interest Rate Protection Agreements, Currency Agreements and all other liabilities related
to interest rate hedges, Currency Agreements and other such derivatives except to the extent
such liabilities become current and realizable,
provided
that regular scheduled
quarterly or monthly settlement payments on such agreements and other derivatives shall not
be considered current and realizable for purposes hereof), (iii) Covered Liabilities and
(iv) security deposits, accrued liabilities and prepaid rents, each as defined in accordance
with GAAP.
8
Consolidated UAP Property Value
shall mean an amount, determined as of the
end of each calendar quarter, equal to the quotient of Consolidated Unencumbered NOI from
UAP Properties
divided
by the Capitalization Rate.
Consolidated Unencumbered Assets
shall mean, for the Consolidated Group, all
real properties that are not encumbered by a mortgage, deed of trust, lien, pledge,
encumbrance or other security interest to secure Funded Debt, but including, in any event, a
pro rata share of the foregoing items and components attributable to interests in Joint
Ventures.
Consolidated Unencumbered EBITDA
shall mean, for any period for the
Consolidated Group, the portion of Consolidated EBITDA that is generated by Consolidated
Unencumbered Assets, but including, in any event, a pro rata share of the foregoing items
and components attributable to interests in Joint Ventures.
Consolidated Unencumbered Interest Coverage Ratio
shall mean the ratio of
Consolidated Unencumbered EBITDA to Consolidated Unencumbered Interest Expense.
Consolidated Unencumbered Interest Expense
shall mean, for any period for the
Consolidated Group, the portion of Consolidated Interest Expense that is not attributable to
Consolidated Secured Debt, but including, in any event, a pro rata share of the foregoing
items and components attributable to interests in Joint Ventures.
Consolidated Unencumbered NOI from UAP Properties
shall mean the portion of
consolidated net operating income that is generated by the UAP Properties.
Consolidated Unsecured Debt
shall mean, for the Consolidated Group, the
portion of Consolidated Funded Debt that is not Consolidated Secured Debt.
Consolidated Unsecured Leverage Ratio
shall mean the ratio of Consolidated
Unsecured Debt to Consolidated UAP Property Value.
Contractual Obligation
means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is bound.
Control
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
Controlling
and
Controlled
have meanings correlative thereto.
9
Covered Liabilities
shall mean any obligation or liability of any Credit
Party or other member of the Consolidated Group that (i) is secured by a letter of credit
issued for the benefit of a Credit Party or other member of the Consolidated Group in form
and substance and from a
financial institution reasonably acceptable to the Administrative Agent, but only to
the extent no Credit Party or other member of the Consolidated Group has liability therefor,
(ii) any obligation (including obligations under so called sandwich leases) against which
a third Party indemnifies any Credit Party, or guarantees all loss suffered by any Credit
Party or other member of the Consolidated Group on account thereof, to the extent the
indemnitor or guarantor has the financial wherewithal to satisfy its obligation, or (iii) is
otherwise acceptable as a Covered Liability in the reasonable discretion of the
Administrative Agent and the Required Lenders.
Credit Agreement
shall have the meaning given to such term in the initial
paragraph of this agreement.
Credit Party
shall mean the Borrower and each of the Guarantors.
Credit Party Materials
shall have the meaning given to such term in
Section 6.2
.
Currency Agreement
shall mean any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar agreement
designed to protect a Credit Party or other member of the Consolidated Group against
fluctuations in currency values or reduce the effect of any such fluctuations.
Debt Rating
means, as of any date of determination, the rating as determined
by either S&P or Moodys of the Borrower or the Borrowers non-credit-enhanced, senior
unsecured long-term debt.
Debtor Relief Laws
shall mean the Bankruptcy Code and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of
the United States of America or other applicable jurisdictions from time to time in effect
affecting the rights of creditors generally.
Default
shall mean any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
Defaulting Lender
shall mean, at any time, any Lender which shall not have
theretofore made available to the Administrative Agent or the Issuing Bank, as applicable,
any amounts required to be made by such Lender hereunder or otherwise failed to pay any
obligation owing by such Lender pursuant to this Credit Agreement.
Disposition
or
Dispose
means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any Property by any
Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith,
but excluding, for purposes hereof, (a) Dispositions of obsolete or worn out Property,
whether now owned or hereafter acquired, in the ordinary course of business; (b)
Dispositions of inventory in the ordinary course of business; and (c) Dispositions of
equipment or real Property to the extent that (i) such Property is exchanged for credit
against the purchase price of similar replacement Property or (ii) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such replacement
Property.
10
Disqualified Stock
shall mean, with respect to any entity, any Capital Stock
of such entity which by the terms of such Capital Stock (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable), upon the
happening of any event or
otherwise (other than pursuant to a change of control provision not materially more
favorable to the holder thereof than provided under this Credit Agreement), (a) matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than
Capital Stock which is redeemable solely in exchange for Capital Stock which is not
Disqualified Stock or for subordinated debt), (b) is convertible into or exchangeable or
exercisable for Indebtedness, other than subordinated Indebtedness or Disqualified Stock, or
(c) is redeemable at the option of the holder thereof, in whole or in part (other than
Capital Stock which is redeemable solely in exchange for Capital Stock which is not
Disqualified Stock or for subordinated Indebtedness); in each case on or prior to the stated
maturity of the Loans and Obligations under this Credit Agreement.
Dollars
and
$
shall mean lawful money of the United States of
America.
Domestic Credit Party
means any Credit Party that is organized under the laws
of any state of the United States or the District of Columbia.
Domestic Subsidiary
means any Subsidiary that is organized under the laws of
any state of the United States or the District of Columbia.
Earnings from Operations
shall mean, for any period for the Consolidated
Group, consolidated net income without reduction for any minority interests, excluding gains
and losses on sales of investments, extraordinary items (including, in any event, losses on
extinguishment of debt), distributions on equity securities, property valuation losses, and
the net income of any Person, other than a Subsidiary of Ventas (except to the extent of
cash dividends or distributions paid to Ventas or any Subsidiary of Ventas) as reflected in
the financial statements of the Consolidated Group for such period, determined on a
consolidated basis in accordance with GAAP, and excluding the cumulative effect of changes
in accounting principles.
Eligible Assignee
Eligible Assignee
means any Person that meets the
requirements to be an assignee under
Section 12.6(b)(iii)
,
(v)
and
(vi)
(subject to such consents, if any, as may be required under
Section
12.6(b)(iii)
);
provided
that notwithstanding the foregoing, Eligible Assignee
shall not include (A) the Borrower or any of the Borrowers Affiliates or Subsidiaries, (B)
Kindred or any other tenant under a Material Lease, (C) another prospective assignee or
successor administrative agent (other than a Lender or an Affiliate of a Lender) which (1)
is or has been an adverse party in litigation or other legal proceedings with, or has
threatened, litigation or other legal proceedings against, Ventas or the Borrower or (2) is
a REIT investing primarily in healthcare and/or senior assisted care living facilities or
(D) an Affiliate of any of the foregoing entities listed in
clauses (B)
or
(C)
hereof.
Environment
shall mean any surface or subsurface water, groundwater, water
vapor, surface or subsurface land, air, fish, wildlife, microorganisms and all other natural
resources.
Environmental Laws
shall mean any and all applicable Laws relating to
pollution and the protection of the Environment or the release of any materials into the
Environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
11
Environmental Liability
means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Borrower, any other Credit Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the Environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
Environmental Permit
shall mean any permits, licenses, approvals, consents or
authorizations required by any Governmental Authority under or in connection with any
Environmental Law and includes any and all orders, consent orders or binding agreements
issued or entered into by a Governmental Authority under any applicable Environmental Law.
Equity Interest
shall mean Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock).
Equity Transaction
shall mean, with respect to the Consolidated Group, any
issuance or sale of shares of its Capital Stock, other than an issuance (a) to any member of
the Consolidated Group, (b) in connection with a conversion of debt securities to equity,
(c) in connection with the Ventas Distribution Reinvestment and Stock Purchase Plan, the
Ventas Directors Stock Purchase Plan or the Ventas Employee and Director Stock Purchase
Plan, (d) to any present or former employee, officer or director of Ventas, or in connection
with the exercise of options by a present or former employee, officer or director of such
Person under a stock incentive plan, stock option plan or other equity-based compensation
plan or arrangement, (e) in connection with the issuance of limited partnership units in the
Borrower under so-called UPREIT transactions, (f) in connection with the conversion of any
such UPREIT units into any Capital Stock of any member of the Consolidated Group, or (g) of
operating units (whether or not exchangeable or convertible into common stock) under any
incentive plan or director stock plan of Borrower or Ventas, Inc. or in connection with the
conversion of any such operating units into common stock.
ERISA
means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate
means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or (c) of the
Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section
412 of the Code).
ERISA Event
means (a) a Reportable Event with respect to a Pension Plan; (b)
a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other
than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
12
Eurodollar Base Rate
shall have the meaning given to such term in the
definition of Eurodollar Rate.
Eurodollar Rate
shall mean for any Interest Period with respect to a
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent pursuant to
the following formula:
|
|
|
|
|
Eurodollar Base Rate
|
Eurodollar Rate =
|
|
1.00 - Eurodollar Reserve Percentage
|
Where,
Eurodollar Base Rate
shall mean, for any Interest Period with respect
to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate (
BBA LIBOR
), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., (London time)
two (2) Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time for
any reason, then the Eurodollar Base Rate for such Interest Period shall be the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of Americas London Branch to major banks
in the London interbank eurodollar market at their request at approximately 11:00
a.m. (London time) two (2) Business Days prior to the commencement of such Interest
Period.
Eurodollar Reserve Percentage
shall mean, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five (5) decimal
places) in effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement) with respect
to Eurodollar funding (currently referred to as Eurocurrency liabilities). The Eurodollar
Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
Eurodollar Rate Loan
shall mean a Loan that bears interest at a rate based on
the Eurodollar Rate.
Event of Default
shall have the meaning given to such term in
Article VIII
hereof.
Excluded Indebtedness
shall mean any and all monetary obligations (if any)
relating to: (a) accounts payable arising in the ordinary course of business and payable in
accordance with customary trade terms; (b) deferred income taxes; (c) dividends payable;
(d) liabilities related to interest rate hedges, Currency Agreements and other such
derivatives except to the extent such liabilities become current and realizable
(
provided
that the regular scheduled quarterly or monthly settlement payments on
interest rate protection agreements and other derivatives shall not be considered current
and realizable for purposes hereof); and (e) Covered Liabilities.
13
Excluded Taxes
means with respect to the Administrative Agent, any Lender, or
any other recipient of any payment to be made by or an account of any obligation of the
Borrower, Ventas, or any other Credit Party hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise taxes imposed on it (in lieu of
net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by another jurisdiction in which the
Borrower, Ventas, or any other Credit Party is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower, Ventas, or any other
Credit Party under
Section 12.14
), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lenders failure or
inability (other than as a result of a Change in Law) to comply with
Section 3.1(e)
,
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new Lending Office (or assignment), to receive additional amounts
from the Borrower, Ventas, or any other Credit Party with respect to such withholding tax
pursuant to
Section 3.1(a)
.
Existing Letter of Credit
shall mean the letter of credit outstanding on the
Closing Date and identified on
Schedule 2.11(b)
.
Extension of Credit
shall mean, as to any Lender, the making of, or
participation in, a Loan by such Lender (including continuations and conversions thereof) or
the issuance or extension of, or participation in, a Letter of Credit by such Lender.
Facility Fee
and
Facility Fees
shall have the meaning in
Section 2.5(a)
hereof.
Federal Funds Rate
shall mean, for any applicable period, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100
th
of one percent (0.01%))
equal to the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next succeeding such
day;
provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be the average
rate charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.
Fee Letter
shall mean that certain letter agreement dated as of March 6, 2006
between the Borrower and the Administrative Agent, relating to the payment of certain fees,
as such letter agreement may be amended, modified or supplemented from time to time by a
written instrument executed by the parties thereto.
Foreign Lender
shall mean any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes. For
purposes of this definition, the United States, each state thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
14
Fund
shall mean any Person (other than a natural person) that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
Fundamental Documents
shall mean this Credit Agreement, any note issued to
evidence any Loan hereunder, all LOC Documents, any Loan Notice, the Fee Letter and any
other
documentation which is required to be or is otherwise executed by any Credit Party and
delivered in connection with this Credit Agreement or any of the documents listed above.
Funded Debt
shall mean (without duplication), at any time and with respect to
any Person (a) indebtedness of such Person for borrowed money (whether by loan or the
issuance and sale of debt securities) or for the deferred purchase price of property or
services purchased (other than amounts constituting trade payables arising in the ordinary
course of business and payable in accordance with customary trading terms in the ordinary
course of business); (b) all indebtedness of such Person evidenced by a note, bond,
debenture or similar instrument (whether or not disbursed in full in the case of a
construction loan); (c) indebtedness of others secured by a Lien on assets of such Person,
whether or not such Person shall have assumed such indebtedness (
provided
, that if
such Person has not assumed such indebtedness of such other Person, then the amount of
indebtedness of such Person pursuant to this
clause (c)
for purposes of this
definition shall be equal to the lesser of the amount of the indebtedness of such other
Person or the fair market value of the assets of such Person which secures such other
indebtedness); (d) obligations of such Person in respect of letters of credit, acceptance
facilities, drafts or similar instruments issued or accepted by banks and other financial
institutions for the account of such Person; (e) any Support Obligations in connection with
Funded Debt by such Person; (f) obligations of such Person under capital leases; (g) the
attributed principal amount of securitization transactions, (h) the attributed principal
amount of Synthetic Leases; (i) all preferred stock or comparable equity interests of such
Person providing for mandatory redemption, sinking fund or other like payments; and (j) the
Funded Debt of any partnership or joint venture or other similar entity in which such Person
is a general partner or joint venturer and, as such, has personal liability for such
obligations, but only if and to the extent there is recourse to such Person for payment
thereof. For purposes of this Credit Agreement, Funded Debt shall not include any
Excluded Indebtedness.
Funds from Operations
shall mean, for any period for the Consolidated Group,
Earnings from Operations for such period
plus
amounts that have been deducted, and
minus amounts that have been added, for the following (without duplication): (a) provision
for taxes of the Consolidated Group based on income, (b) amortization of debt discount and
deferred financing costs, (c) provisions for gains and losses on properties and property
depreciation and amortization, (d) the effect of any non-cash charge resulting from a change
in accounting principles in determining Earnings from Operations for such period, (e)
amortization of deferred charges, and (f) provisions for gains and losses on account of any
partial or total termination of any Hedging Agreement.
GAAP
means generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board that are applicable to the circumstances as of the date of
determination, consistently applied, subject, however, to the provisions of
Section
1.2
.
15
Governmental Authority
shall mean any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, or any court,
in each case whether of the United States or any foreign jurisdiction.
Guarantors
shall mean (a) Ventas and (b) any Subsidiary of Ventas that
guarantees the loans and obligations hereunder pursuant to the terms hereof, in each case
with their successors and permitted assigns;
provided
,
however
, that any
Person constituting a Guarantor as described
above shall cease to constitute a Guarantor when its obligations hereunder are released
in accordance with the terms of this Credit Agreement.
Guaranteed Obligations
shall have the meaning given to such term in
Section 9.1
.
Guaranty
shall mean the guaranty of the Obligations by each of the Guarantors
pursuant to
Article IX
hereof.
Hazardous Materials
shall mean petroleum, petroleum hydrocarbons or petroleum
products, petroleum by-products, radioactive materials, asbestos or asbestos-containing
materials, gasoline, diesel fuel, pesticides, radon, urea formaldehyde, lead or
lead-containing materials, polychlorinated biphenyls; and any other chemicals, materials,
substances or wastes in any amount or concentration which are now or hereafter become
defined as or included in the definition of hazardous substances, hazardous materials,
hazardous wastes, extremely hazardous wastes, restricted hazardous wastes, toxic
substances, toxic pollutants, pollutants, regulated substances, solid wastes, or
contaminants or words of similar import, under any Environmental Law, but excluding any
substance or material customarily located on and used in properties of like type that are
stored and used in strict conformity with all applicable Laws.
Hedging Agreements
shall mean any Interest Rate Protection Agreement or
Currency Agreement entered into from time to time between a Lender or an Affiliate of a
Lender and the Borrower as permitted by this Credit Agreement.
Hedging Banks
shall mean any Lender or Affiliate of a Lender that has entered
into a Hedging Agreement.
Honor Date
shall have the meaning given to such term in
Section
2.11(c)(i)
.
incur
shall mean issue, create, assume, guarantee, incur or otherwise become
liable for;
provided
,
however
, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such Subsidiary
at the time it becomes a Subsidiary. Neither the accrual of interest nor the accretion of
original issue discount shall be deemed to be an incurrence of Indebtedness. The term
incurrence when used as a noun shall have a correlative meaning.
Indebtedness
shall mean (without duplication), at any time and with respect
to any Person, (a) all Funded Debt of such Person, (b) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements, (c) all obligations of
such Person under any Interest Rate Protection Agreement or Currency Agreement, (d)
Indebtedness of any partnership or joint venture or other similar entity in which such
Person is a general partner or joint venturer and, as such, has personal liability for such
obligations, but only if and to the extent there is recourse to such Person for payment
thereof, (e) any Support Obligations of such Person of the Indebtedness of another and (f)
Indebtedness of another Person secured by a Lien on any assets of such Person, whether or
not such Person shall have assumed such Indebtedness (
provided
, that if such Person
has not assumed such Indebtedness of such other Person, then the amount of Indebtedness of
such Person pursuant to this
clause (f)
for purposes of this definition shall be
equal to the lesser of the amount of the Indebtedness of such other Person or the fair
market value of the assets of such Person which secures such other Indebtedness). The term
Indebtedness shall not include any Excluded Indebtedness.
16
Indemnified Taxes
shall mean Taxes other than Excluded Taxes.
Indemnitee
shall have the meaning given to such term in
Section
12.4(b)
.
Initial Date
shall mean (a) in the case of the Administrative Agent and Bank
of America, in its capacity as the Issuing Bank, the Closing Date, (b) in the case of each
Lender which is an original party to this Credit Agreement, the Closing Date and (c) in the
case of any other Lender, the effective date on which it became a Lender.
Interest Payment Date
shall mean (a) as to any Base Rate Loan and any
Swingline Loan, the first Business Day after the end of each March, June, September and
December and the Revolving Commitment Termination Date and (b) as to any Eurodollar Rate
Loan, the last Business Day of each Interest Period for such Loan, the date of repayment of
principal of such Loan and the Revolving Commitment Termination Date, and, in addition,
where the applicable Interest Period is more than three (3) months, then also on the date
three (3) months from the beginning of the Interest Period, and each three (3) months
thereafter. If an Interest Payment Date falls on a date that is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business Day.
Interest Period
shall mean, as to any Eurodollar Rate Loan, a period of one
(1), two (2), three (3) or six (6) months, as the Borrower may elect, in each case
commencing on the date of the Borrowing (including conversions, continuations and renewals);
provided
,
however
, (a) if any Interest Period would end on a day that is not
a Business Day, such Interest Period shall be extended to the next succeeding Business Day
(except in the case of Eurodollar Rate Loans where the next succeeding Business Day falls in
the next succeeding calendar month, then such Interest Period shall end on the next
preceding Business Day), (b) in the case of Revolving Loans, no Interest Period shall extend
beyond the Revolving Commitment Termination Date, and (c) in the case of Eurodollar Rate
Loans, where an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to end, such
Interest Period shall end on the last day of such calendar month.
Interest Rate Protection Agreement
shall mean any interest rate swap
agreement, Currency Agreement, interest rate cap agreement, synthetic cap, collar or floor
or other financial agreement or arrangement designed to protect a Credit Party against
fluctuations in interest rates or to reduce the effect of any such fluctuations.
Interest Rate Type
shall mean either Base Rate Loans or Eurodollar Rate
Loans, as appropriate.
Investment
means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other acquisition of
Capital Stock of another Person, (b) a loan, advance or capital contribution to, guaranty or
assumption of debt of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the investor undertakes
any Support Obligations with respect to Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
17
IRS
means the United States Internal Revenue Service.
ISP
means, with respect to any Letter of Credit, the International Standby
Practices 1998 published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
Issuing Bank
shall mean (a) as to Existing Letters of Credit, those Lenders
identified as an issuer on
Schedule 2.11(b)
, and (b) as to Letters of Credit issued
hereunder, Bank of America in its capacity as issuer of Letters of Credit hereunder, in each
case together with its successors in such capacity
Issuing Bank Fee
shall have the meaning given to such term in
Section
2.5(b)(iii)
.
Joinder Agreement
shall mean a joinder agreement substantially in the form of
Exhibit 6.12
executed and delivered in accordance with the provisions of
Section
6.12
.
Joint Venture
shall mean any Person in which any Credit Party or other member
of the Consolidated Group directly or indirectly has an ownership interest but is not a
Subsidiary.
Kindred
shall mean (collectively or individually, as appropriate) Kindred
Healthcare, Inc. (formerly Vencor, Inc.), a Delaware corporation, and Kindred Healthcare
Operating, Inc., a Delaware corporation.
Laws
means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case having the force of law.
Lenders
shall mean each of the Persons identified as a Lender or Swingline
Lender on the signature pages hereto, and their successors and assigns.
Lending Office
shall mean, with respect to any of the Lenders, the branch or
branches (or affiliate or affiliates) from which such Lenders Eurodollar Rate Loans or Base
Rate Loans, as the case may be, are made or maintained and for the account of which all
payments of principal of, and interest on, such Lenders Eurodollar Rate Loans or Base Rate
Loans are made, as notified to the Administrative Agent from time to time.
Letter of Credit
shall mean any standby or trade letter of credit issued by
the Issuing Bank in accordance with the terms of
Section 2.1(b)
and shall include
the Existing Letters of Credit.
Letter of Credit Application
shall mean an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use by the
Issuing Bank.
18
Letter of Credit Expiration Date
shall mean the day that is seven (7) days
prior to the Revolving Commitment Termination Date.
Letter of Credit Fees
shall mean, collectively, the Standby Letter of Credit
Fees and the Trade Letter of Credit Fees.
Lien
means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or
preferential arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement, any easement,
right of way or other encumbrance on title to real property and any financing lease having
substantially the same economic effect as any of the foregoing).
Loan
or
Loans
shall mean the Revolving Loans and the Swingline
Loans, and the Base Rate Loans and Eurodollar Rate Loans comprising such Loans.
Loan Notice
shall mean a written loan notice in substantially the form of
Exhibit 2.2
.
LOC Advance
means, with respect to each Lender, such Lenders funding of its
participation in any LOC Borrowing in accordance with its LOC Commitment.
LOC Borrowing
means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or refinanced as a
Revolving Loan.
LOC Commitment
shall mean (a) with respect to the Issuing Bank, the
commitment of the Issuing Bank to issue, and to honor payment obligations under, Letters of
Credit and (b) with respect to each other Lender, the commitment of such Lender to purchase
Participation Interests in the Letters of Credit up to such Lenders LOC Committed Amount.
LOC Committed Amount
shall have the meaning given to such term in
Section
2.1(b)
.
LOC Documents
shall mean, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered in connection therewith, the
Letter of Credit Application and any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.
LOC Obligations
shall mean, at any time, the sum (without duplication) of (a)
the maximum amount that is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit
plus
(b) the aggregate amount of all
drawings under Letters of Credit honored by the Issuing Bank but not yet reimbursed. For
all purposes of this Credit Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be outstanding
in the amount so remaining available to be drawn.
Margin Stock
shall be as defined in Regulation U.
19
Material Adverse Effect
shall mean any event or condition that (a) has a
material adverse effect on the business, assets, properties, operations or financial
condition of the Credit Parties taken as a whole or (b) materially impairs the ability of
the Credit Parties as a whole to perform their material obligations under the Credit
Agreement;
provided
,
however
, that any event or condition will be deemed to
have a Material Adverse Effect if such event or condition when taken together with all
other events and conditions occurring or in existence at such time (including all other
events and conditions which, but for the fact that a representation, warranty or covenant is
subject to a Material Adverse Effect exception, would cause such representation or
warranty contained herein to be untrue or such covenant to be breached) would result in a
Material Adverse Effect, even though, individually, such event or condition would not do
so.
Material Indebtedness
shall mean any Indebtedness of any Credit Party (other
than the Obligations) which, if recourse in nature, exceeds $25,000,000 in the aggregate,
and, if non-recourse in nature, exceeds $50,000,000 in the aggregate.
Material Lease
shall mean any lease in which any Credit Party is the landlord
that individually or together with other such leases in which such Credit Party is the
landlord, requires annual base rent to be paid to such Credit Party landlord in excess of
$100,000,000.
Maximum Rate
shall have the meaning given to such term in
Section
12.9
.
Moodys
shall mean Moodys Investors Service, Inc. and any successor thereto.
Multiemployer Plan
means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
Net Cash Proceeds
shall mean the aggregate cash proceeds received by a Credit
Party or any Subsidiary thereof (including, as applicable, all cash proceeds received by way
of deferred payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received),
minus
(without duplication) reasonable and customary
brokerage commissions and other reasonable and customary fees and expenses related to such
transaction (including reasonable and customary fees and expenses of counsel and investment
bankers actually paid by the applicable Credit Party or Subsidiary and reasonable
expenditures made to improve the property in connection with the applicable transaction).
Note
or
Notes
shall mean the Revolving Notes and the Swingline
Note.
Notice of Prepayment
shall mean a written notice of prepayment in
substantially the form of
Exhibit 2.7(b)
, as required by
Section 2.7
.
Obligations
shall mean (a) all obligations whether, direct or indirect,
contingent or absolute, of every type or description and at any time existing, of the
Borrower to make due and punctual payment of (i) principal of and all interest on the Loans,
the Facility Fees, the Letter of Credit Fees, any reimbursement obligations in respect of
Letters of Credit, costs and attorneys fees and all other monetary obligations of the
Borrower to the Administrative Agent, the Issuing Bank or any Lender under or in respect of
this Credit Agreement, any note evidencing any of the Loans hereunder, any other Fundamental
Document or the Fee Letter and (ii) all obligations under Hedging Agreements (including
interest accruing at the then applicable rate provided in this Credit Agreement after the
maturity of any of the Loans, and interest accruing at the then applicable rate provided in
this Credit Agreement after the filing of any petition in bankruptcy or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower or any other
Credit Party, whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), (b) all obligations under any Treasury Management Agreement between any
Credit Party and any Lender or Affiliate of a Lender and (c) all other obligations of the
Borrower or any other Credit Party pursuant to this Credit Agreement or any other
Fundamental Document.
20
Operative Documents
shall mean, collectively, (a) this Credit Agreement, (b)
any note issued to evidence any Loans hereunder, and (c) any Joinder Agreement.
Organizational Documents
shall mean (a) with respect to any corporation, the
certificate or articles of incorporation and bylaws; (b) with respect to any limited
liability company, the certificate or articles of formation and operating agreement; and (c)
with respect to any partnership, joint venture or other form of business entity, the
partnership agreement and any agreement, filing or notice with respect thereto filed with
the secretary of state of the state of its formation, in each case as amended from time to
time.
Other Taxes
shall mean all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or under any other Fundamental Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Credit Agreement or any other Fundamental
Document.
Participant
shall have the meaning given to such term in
Section
12.6(d)
.
Participation Interest
shall mean the purchase by a Lender of a participation
in LOC Obligations as provided in
Section 2.11(b)
, in Swingline Loans as provided in
Section 2.12
and in Loans as provided in
Section 2.14
.
Patriot Act
shall have the meaning given to such term in
Section
12.17
.
PBGC
means the Pension Benefit Guaranty Corporation.
Pension Plan
means any employee pension benefit plan (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title
IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or
in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding five plan years.
Permitted Liens
means (a) Liens securing Obligations, (b) Liens for taxes not
yet due or Liens for taxes being contested in good faith by appropriate proceedings for
which adequate reserves have been established, (c) Liens in respect of property imposed by
law arising in the ordinary course of business such as materialmens, mechanics,
warehousemens, carriers, landlords and other nonconsensual statutory Liens which are not
yet overdue for more than 30 days or which are being contested in good faith by appropriate
proceedings for which adequate reserves have been established; (d) easements, rights-of-way,
restrictions (including zoning restrictions), covenants, conditions and restrictions, party
wall agreements, structural support agreements, matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered property for its intended purposes; (e) pledges
or deposits in the ordinary course of business in connection with workers compensation,
unemployment insurance and other social security legislation, other than any Lien imposed by
ERISA; (f) deposit arrangements to secure the performance of construction or renovation,
bids, trade contracts and leases (other than Funded Debt), statutory obligations, surety
bonds (other than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business, including, without
limitation, in the course of development or renovation; and (g) assignments to a reverse
Section 1031 exchange trust.
21
Person
shall mean any natural person, corporation, partnership, limited
liability partnership, limited liability company, trust, joint venture, association,
company, estate, unincorporated organization or government or any agency or political
subdivision thereof.
Plan
means any employee benefit plan (as such term is defined in Section
3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject
to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
Platform
shall have the meaning given to such term in
Section 6.2
.
Premises
shall mean any real property currently or formerly owned, leased or
operated by any Credit Party or any Subsidiary of any Credit Party, including, but not
limited to, all soil, surface water, or groundwater thereat.
Prepayment Date
shall have the meaning given to such term in
Section 2.7(f)
hereof.
Prime Rate
shall mean, for any applicable period, the rate per annum in
effect for such day as publicly announced from time to time by Bank of America as its prime
rate, changing as and when such rate changes are so announced. Such rate is a rate set by
Bank of America based upon various factors including Bank of Americas costs and desired
return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.
Prior Credit Agreement
shall have the meaning given to such term in the
Introductory Statement of this Credit Agreement.
Pro Forma Basis
shall mean, for purposes of determining the applicable
pricing level under
clause (a)
of the definition of Applicable Percentage,
determining Consolidated EBITDA, Consolidated Gross Asset Value and any financial covenant
hereunder, that the subject transaction shall be deemed to have occurred as of the first day
of the period of four (4) consecutive fiscal quarters ending as of the end of the most
recent fiscal quarter for which annual or quarterly financial statements shall have been
delivered in accordance with the provisions of this Credit Agreement. Further, for purposes
of making calculations on a Pro Forma Basis hereunder, (a) in the case of a Disposition,
(i) income statement items (whether positive or negative) attributable to the property,
entities or business units that are the subject of such Disposition shall be excluded to the
extent relating to any period prior to the date of the subject transaction, and (ii)
Indebtedness paid or retired in connection with the subject transaction shall be deemed to
have been paid and retired as of the first day of the applicable period; (b) in the case of
an Acquisition, (i) income statement items (whether positive or negative) attributable to
the property, entities or business units that are the subject of such Acquisition shall be
included to the extent relating to any period prior to the date of the subject transaction,
and (ii) Indebtedness incurred in connection with the subject transaction shall be deemed to
have been incurred as of the first day of the applicable period (and interest expense shall
be imputed for the applicable period utilizing the actual interest rates thereunder or, if
actual rates are not ascertainable, assuming prevailing interest rates hereunder) and (c) in
the case of the issuance or exercise of an Equity Interest, Indebtedness paid or retired in
connection therewith shall be deemed to have been paid and retired as of the first day of
the applicable period.
22
Property
means an interest of any kind in any property or asset, whether
real, personal or mixed, and whether tangible or intangible.
pro rata share
means, with respect to interests in Joint Ventures by any
member of the Consolidated Group, (i) in the case of income statement items and components,
such as net income, EBITDA and interest expense, such members direct or indirect percentage
ownership interest of the respective Joint Venture in such items and components, and (ii) in
the case of Indebtedness, such members direct or indirect percentage ownership interest in
the respective Joint Venture in such Indebtedness, unless the Indebtedness is expressly
non-recourse to the members of the Consolidated Group.
Public Lender
shall have the meaning given to such term in
Section
6.2
.
Register
shall have the meaning given to such term in
Section 12.6(c)
.
Regulation U
shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
REIT
shall mean a real estate investment trust as defined in Sections 856-860
of the Code.
Related Parties
shall mean, with respect to any Person, such Persons
Affiliates and the partners, directors, officers, employees, agents and advisors of such
Person and of such Persons Affiliates.
Release
shall mean any discharging, disposing, emitting, leaking, pumping,
pouring, emptying, injecting, escaping, leaching, dumping or spilling of any Hazardous
Material into the Environment.
Reportable Event
means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty (30) day notice period has been waived.
Required Lenders
shall mean, at any time, Lenders having in the aggregate
more than fifty percent (50%) of the Commitments or, if the Commitments have been
terminated, Lenders having in the aggregate more than fifty percent (50%) of the aggregate
principal amount of the Revolving Obligations outstanding (taking into account in each case
Participation Interests or obligations to participate therein);
provided
that the
Commitments of, and outstanding principal amount of Revolving Obligations (taking into
account Participation Interests or obligations to participate therein) owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a determination of
Required Lenders.
Restricted Payments
shall mean any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock of any member of the
Consolidated Group or any payment (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Capital Stock or other Equity Interest,
or on account of any return of capital to such members stockholders, partners or members
(or the equivalent Person thereof).
23
Revolving Commitment
shall mean the commitment of a Lender to make Revolving
Loans to the Borrower and to participate in Letters of Credit and Swingline Loans from the
Initial Date applicable to such Lender through the Revolving Commitment Termination Date, up
to an aggregate amount, at any one time outstanding, not in excess of the amount set forth
(a) opposite such Lenders name under the column entitled Revolving Commitment on
Schedule 1.1
, or (b) in any applicable Assignment and Assumption(s) to which such
Lender may be a party, as the
case may be, as such amount may be reduced or increased from time to time in accordance
with the terms of this Credit Agreement (including pursuant to
Section 12.1
hereof).
Revolving Commitment Percentage
shall mean, for each Lender, a fraction
(expressed as a percentage) the numerator of which is the Revolving Commitment of such
Lender at such time and the denominator of which is the Total Revolving Committed Amount at
such time. The initial Revolving Commitment Percentage of each Lender is set forth on
Schedule 1.1
.
Revolving Commitment Termination Date
shall mean April 26, 2009, as such date
may be extended hereunder.
Revolving Lender
shall mean any Lender holding a Revolving Commitment
hereunder.
Revolving Loans
shall have the meaning given to such term in
Section 2.1(a)
hereof.
Revolving Note
or
Revolving Notes
shall mean the promissory notes
in favor of each of the Lenders evidencing the Revolving Loans in substantially the form
attached as
Exhibit 2.4(e)-1
, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended, renewed or replaced from
time to time.
Revolving Obligations
shall mean, as of any date, the aggregate principal
amount of all Revolving Loans outstanding
plus
the aggregate principal amount of LOC
Obligations outstanding
plus
the aggregate principal amount of Swingline Loans
outstanding on such date.
S&P
shall mean Standard & Poors Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
SEC
shall mean the United States Securities and Exchange Commission, or any
successor thereto.
Standby Letter of Credit Fee
shall have the meaning given to such term in
Section 2.5(b)(i)
.
Subsidiary
of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity the accounts of which are consolidated
with the accounts of such Person in such Persons consolidated financial statements prepared
in accordance with GAAP. Unless otherwise specified, all references herein to a
Subsidiary or to Subsidiaries shall refer to a Subsidiary or Subsidiaries of the
Borrower.
24
Support Obligations
shall mean, as to any Person, any direct or indirect
obligation of such Person guaranteeing or intending to guarantee, or otherwise providing
credit support for, any Indebtedness, capital lease, dividend or other monetary obligation
(a
primary obligation
) of any other Person (the
primary obligor
) in any
manner, whether directly or indirectly, by contract, as a general partner or otherwise,
including any obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, or (c) to purchase property,
securities or services from the primary obligor or other Person, in each case, primarily for
the purpose of assuring the performance of the primary obligor of any such primary
obligation or assuring the owner of any such primary obligation of the repayment of such
primary
obligation. The amount of any Support Obligation shall be deemed to be an amount equal
to (x) the stated or determinable amount of the primary obligation in respect of which such
Support Obligation is made (or, if the amount of such primary obligation is not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder)) or (y) the stated maximum liability under such
Support Obligation, whichever is less. The term Support Obligations shall not include any
Excluded Indebtedness.
Swingline Commitment
shall mean, with respect to the Swingline Lender, the
commitment of the Swingline Lender to make Swingline Loans hereunder and, with respect to
each other Lender, the commitment of such Lender to purchase Participation Interests in
Swingline Loans hereunder.
Swingline Committed Amount
shall have the meaning given to such term in
Section 2.1(c)
.
Swingline Lender
shall mean Bank of America.
Swingline Loan
shall have the meaning given to such term in
Section
2.1(c)
.
Swingline Note
shall mean the promissory note in favor of the Swingline
Lender evidencing the Swingline Loans in substantially the form attached as
Exhibit
2.4(e)-2
, as such note may be amended, modified, supplemented, extended, renewed or
replaced from time to time.
Synthetic Lease
shall mean any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is classified as
an operating lease under GAAP.
Taxes
shall mean all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
Total Revolving Committed Amount
shall have the meaning given to such term in
Section 2.1(a)
.
Trade Letter of Credit Fee
shall have the meaning given to such term in
Section 2.5(b)(ii)
.
Treasury Management Agreement
means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.
25
UAP Property
shall mean any real property asset located in the United States
owned or leased by a Domestic Credit Party:
(a) that constitutes or is used as a skilled nursing home center, hospital,
personal healthcare facility, assisted living facility, independent living facility,
medical office building, continuum of care facility, life care facility, sheltered
care facility, seniors housing, seniors living facility or other property
customarily constituting an asset of a REIT specializing in healthcare or seniors
housing property;
(b) that is more than ninety percent (90%) owned by a Credit Party which
ownership is either (i) fee simple or (ii) a long-term ground leasehold approved by
the Administrative Agent such approval not to be unreasonably withheld;
(c) that is free from material environmental problems as represented in
Section 4.14
(without the need for environmental reports or other related
information except upon request by the Administrative Agent), or, in the
alternative, such environmental problems are the subject of environmental
indemnities from a credit-worthy party in form and amount reasonably acceptable to
the Administrative Agent such approval not to be unreasonably withheld or is
otherwise a Covered Liability;
(d) that is (i) leased to or managed by Kindred, Brookdale or any other tenant
or operator of any Property owned or leased by a Credit Party as of the Closing
Date, (ii) leased to or managed by another acceptable third party operator or tenant
on market terms or otherwise acceptable to the Administrative Agent, or (iii)
operated by a member of the Consolidated Group;
(e) with respect to which no base rent payments owing in respect thereof are
more than sixty (60) days past due; and
(f) that is not encumbered by any mortgage, deed of trust, lien, pledge,
encumbrance or other security interest to secure Funded Debt (other than any
Permitted Lien that does not secure Funded Debt).
UCC
shall mean the Uniform Commercial Code as in effect in the State of
New York at the relevant time.
UCP
shall have the meaning given to such term in
Section 2.11(h)
.
Unfunded Pension Liability
means the excess of a Pension Plans benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plans assets, determined in accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable plan year.
Unreimbursed Amount
shall have the meaning given to such term in
Section
2.11(c)(i)
.
Ventas
shall have the meaning given to such term in the initial paragraph of
this Credit Agreement, and its permitted successors.
26
Section 1.2
Accounting Terms
.
(a) Except as otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall be prepared in accordance with GAAP. All
calculations made for the purposes of determining compliance with this Credit Agreement shall
(except as otherwise expressly provided herein) be made by application of GAAP on a basis
consistent with the most recent annual or quarterly financial statements delivered pursuant to
Section 6.1
(or, prior to the delivery of the first financial statements pursuant to
Section 6.1
, consistent with the annual audited financial statements referenced in
Section 4.6
hereof);
provided
,
however
, if (i) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such financial statements due
to any change in GAAP or the rules promulgated with respect thereto or (ii) the Administrative
Agent or the Required Lenders shall so object in
writing within sixty (60) days after delivery of such financial statements, then such calculations
shall be made on a basis consistent with the most recent financial statements delivered by the
Credit Parties to the Lenders as to which no such objection shall have been made. Any other
prorations utilized by the Borrower in making any calculation under this Credit Agreement shall be
subject to the approval of the Administrative Agent in its sole discretion.
(b) Determinations of (i) the applicable pricing level under
clause (a)
of the
definition of Applicable Percentage, (ii) Consolidated EBITDA and Consolidated Gross Asset Value
and (iii) compliance with the financial covenants hereunder shall be made on a Pro Forma Basis.
Section 1.3
Letter of Credit Amounts
.
Unless otherwise specified, all references herein to the amount of a Letter of Credit at any
time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect
to all increases thereof contemplated by such Letter of Credit or the LOC Documents related
thereto, whether or not such maximum face amount is in effect at such time.
Section 1.4
Other Interpretive Provisions
.
With reference to this Credit Agreement and each other Fundamental Document, unless otherwise
specified herein or in such other Fundamental Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
include
,
includes
and
including
shall be deemed to be followed by the phrase
without limitation. The word
will
shall be construed to have the same meaning
and effect as the word
shall
. Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Fundamental Document), (ii) any reference herein to any Person shall be construed to
include such Persons successors and assigns, (iii) the words
herein
,
hereof
and
hereunder
, and words of similar import when used in any
Fundamental Document, shall be construed to refer to such Fundamental Document in its
entirety and not to any particular provision thereof, (iv) all references in a Fundamental
Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Fundamental Document in which
such references appear, (v) any reference to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing or interpreting such Law and any
reference to any Law shall, unless otherwise specified, refer to such Law as amended,
modified or supplemented from time to time, (vi) the words
asset
and
property
shall be construed to have the same meaning, and (vii) the words
unreasonably withheld
mean
unreasonably withheld or delayed
.
27
(b) In the computation of periods of time from a specified date to a later specified date,
the word
from
means
from and including
; the words
to
and
until
each mean
to but excluding
; and the word
through
means
to and including
.
(c) Section headings herein and in the other Fundamental Documents are included for
convenience of reference only and shall not affect the interpretation of this Credit
Agreement or any other Fundamental Document.
ARTICLE II
THE LOANS
Section 2.1
Commitments
.
(a)
Revolving Commitment
. During the Commitment Period, subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (the
Revolving Loans
) to the Borrower in Dollars from time to time in the amount of such
Revolving Lenders Revolving Commitment Percentage of the Revolving Loans requested by the Borrower
hereunder for the purposes hereinafter set forth;
provided
that (i) the aggregate principal
amount of Revolving Obligations outstanding shall not at any time exceed FIVE HUNDRED MILLION
DOLLARS ($500,000,000) (as such amount may be increased or reduced from time to time in accordance
with the provisions hereof, the
Total Revolving Committed Amount
), (ii) the aggregate
principal amount of Revolving Obligations outstanding shall not at any time exceed the Borrowing
Base, and (iii) with regard to each Revolving Lender individually, such Revolving Lenders
Revolving Commitment Percentage of the Revolving Obligations outstanding shall not at any time
exceed such Revolving Lenders Revolving Commitment. Revolving Loans may consist of Base Rate
Loans or Eurodollar Rate Loans, or a combination thereof, as the Borrower may request, and may be
repaid and reborrowed in accordance with the provisions hereof.
(b)
Letter of Credit Commitment
. During the Commitment Period, subject to the terms
and conditions hereof, if any, and such other terms and conditions which the Issuing Bank may
require, the Issuing Bank shall issue, and the Revolving Lenders shall participate in, such Letters
of Credit in Dollars as the Borrower may request for its own account or for the account of another
Credit Party as provided herein, in a form acceptable to the Issuing Bank, for the purposes
hereinafter set forth;
provided
that (i) the aggregate principal amount of LOC Obligations
shall not at any time exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as such amount may be
increased in accordance with the provisions of
Section 2.1(d)(ix)
or decreased in
accordance with the provisions of
Section 2.6(b)
, the
LOC Committed Amount
), (ii)
the aggregate principal amount of Revolving Obligations outstanding at any time shall not exceed
the Total Revolving Committed Amount, (iii) the aggregate principal amount of Revolving Obligations
outstanding shall not at any time exceed the Borrowing Base, and (iv) with regard to each Revolving
Lender individually, such Revolving Lenders Revolving Commitment Percentage of Revolving
Obligations outstanding at any time shall not exceed such Revolving Lenders Revolving Commitment.
Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the Extension of Credit so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrowers ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. The Revolving Lenders hereby purchase from the Issuing Bank a participation interest
in the Existing Letters of Credit in an amount equal to each such Lenders Revolving Commitment
Percentage thereof. All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
28
(c)
Swingline Commitment
. During the Commitment Period, subject to the terms and
conditions hereof, the Swingline Lender agrees to make certain revolving credit loans (the
Swingline Loans
) to the Borrower in Dollars from time to time for the purposes
hereinafter set forth;
provided
that (i) the aggregate principal amount of Swingline Loans
outstanding shall not at any time exceed FIFTY MILLION DOLLARS ($50,000,000) (as such amount may be
increased in accordance with the
provisions of
Section 2.1(d)(ix)
or decreased in accordance with the provisions of
Section 2.6(b)
, the
Swingline Committed Amount
), (ii) the aggregate principal
amount of Revolving Obligations outstanding at any time shall not exceed the Total Revolving
Committed Amount and (iii) the aggregate principal amount of Revolving Obligations outstanding
shall not at any time exceed the Borrowing Base. Each Swingline Loan shall be repaid three (3)
days after the date of borrowing and shall be a Base Rate Loan. Swingline Loans may be repaid and
reborrowed in accordance with the provisions hereof.
(d)
Increase in Total Revolving Committed Amount
. Subject to the terms and conditions
set forth herein, the Borrower may at any time upon notice to the Administrative Agent increase the
Total Revolving Committed Amount by up to ONE HUNDRED MILLION DOLLARS ($100,000,000);
provided
that:
(i) each increase in the Revolving Commitment of an existing Lender and each new
Revolving Commitment from a new Lender shall be in a minimum aggregate principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount,
if less);
(ii) the conditions to the making of a Revolving Loan set forth in
Section 5.2
shall have been satisfied or waived;
(iii) none of Banc of America Securities LLC, Bank of America or Calyon New York Branch
shall have any responsibility for arranging any additional commitments hereunder without
their prior written consent and subject to such conditions, including fee arrangements, as
they may provide (and which are acceptable to the Borrower) in connection therewith;
(iv) the Borrower shall obtain (or cause to be obtained) commitments for the amount of
the increase from existing Lenders (which shall be under no obligation to increase their
commitments hereunder) or other commercial banks or financial institutions that would
qualify as Eligible Assignees;
provided
that such other commercial banks and
financial institutions join in this Credit Agreement as Lenders by Joinder Agreement or
other arrangement reasonably acceptable to the Administrative Agent;
(v) if any Revolving Loans are outstanding at the time of any such increase, the
Borrower shall make such payments and adjustments on the Revolving Loans (including payment
of any amounts owing under
Section 3.5
) as necessary to give effect to the revised
commitment percentages and commitment amounts;
(vi) after giving effect to any such increase, the aggregate amount of the Revolving
Commitments shall not exceed SIX HUNDRED MILLION DOLLARS ($600,000,000);
(vii) the Borrower pays upfront and/or arrangement fees, if any, as are acceptable to
the Borrower and the Lenders providing new commitments or increasing their commitment in
respect of the new commitments so established;
29
(viii) in connection with any such increase, (A)
Schedule 1.1
shall be revised
to reflect the Revolving Commitments and Revolving Commitment Percentages of the Lenders
after giving effect thereto, (B) the Borrower will provide supporting corporate resolutions,
legal opinions, notes and other items as may be reasonably requested by the Administrative
Agent and the Lenders in connection therewith, and (C) the Borrower will pay all fees and
expenses related thereto; and
(ix) on any date that the Total Revolving Committed Amount is increased pursuant to
this
Section 2.1(d)
, the LOC Committed Amount shall also be increased
proportionately to an amount equal to fifteen percent (15%) of the Total Revolving Committed
Amount and the Swingline Committed Amount shall also be increased proportionately to an
amount equal to the lesser of (A) twenty percent (20%) of the Total Revolving Committed
Amount, or (B) $50,000,000.
(e)
One Time Extension of Revolving Commitment Termination Date
. The Borrower may, at
its option, on a one-time basis, elect to extend the Revolving Commitment Termination Date for an
additional period of one (1) year to April 26, 2010;
provided
that:
(i) the Borrower shall give written notice to the Administrative Agent of its election
to extend the Revolving Commitment Termination Date not less than thirty (30) days, prior to
the original Revolving Commitment Termination Date;
(ii) the conditions precedent to the making of a Loan set forth in
subsections
(b)
and
(c)
of
Section 5.2
shall be satisfied or waived by the Required
Lenders on the date of the request for extension and the Borrower shall give written
confirmation thereof; and
(iii) receipt by the Administrative Agent of payment by the Borrower of an extension
fee of fifteen basis points (0.15%) on the aggregate amount of Revolving Commitments for the
ratable benefit of the Revolving Lenders.
Section 2.2
Method of Borrowing.
The Borrower shall request an Extension of Credit by submitting a Loan Notice or a Letter of
Credit Application, as applicable (or by telephonic notice promptly confirmed in writing) as
follows:
(a)
Revolving Loans
. In the case of Revolving Loans, by submitting a Loan Notice to
the Administrative Agent not later than 11:00 a.m. (Charlotte, North Carolina time) on the Business
Day prior to the date of the requested Borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the date of the requested Borrowing in the case of Eurodollar Rate Loans.
Each such Loan Notice shall be irrevocable and shall specify (i) the date of the requested
Borrowing (which shall be a Business Day), (ii) the aggregate principal amount to be borrowed, and
(iii) whether the Borrowing shall be comprised of Base Rate Loans, Eurodollar Rate Loans or a
combination thereof, and if Eurodollar Rate Loans are requested, the Interest Period(s) therefor;
provided
that if in connection with any such request for a Revolving Loan, the Borrower
shall fail to specify (1) an applicable Interest Period in the case of a Eurodollar Rate Loan, the
Borrower shall be deemed to have requested an Interest Period of one (1) month or (2) the Interest
Rate Type for the Revolving Loan requested, the Borrower shall be deemed to have requested a Base
Rate Loan. The Administrative Agent shall give notice to each Revolving Lender promptly upon
receipt of each Loan Notice pursuant to this
Section 2.2(a)
, the contents thereof and such
Revolving Lenders share of any Borrowing to be made pursuant thereto. Each Lender shall make the
amount of its share of the Borrowing available to the Administrative Agent in immediately available
funds at the Administrative Agents office by not later than 1:00 p.m. (Charlotte, North Carolina
time)
30
on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in
Section 5.2
(and, if such Borrowing is the initial
Extension of Credit,
Section 5.1
), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with wire instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided
,
however
, that if, on the date the Loan Notice with respect to such
Borrowing is given by the Borrower, there are LOC Borrowings outstanding that have remained
outstanding for more than five (5) Business Days after the Administrative Agent has requested in
writing that the Borrower repay them, then the proceeds of such Borrowing,
first
, shall be
applied to the payment in full of any such LOC Borrowings, and
second
, shall be made
available to the Borrower as provided above.
(b)
Letters of Credit
. In the case of Letters of Credit, by submitting a Letter of
Credit Application in accordance with the terms of
Section 2.11(b)
hereof.
(c)
Swingline Loans
. In the case of Swingline Loans, to the Swingline Lender with a
copy to the Administrative Agent not later than 2:00 p.m. (Charlotte, North Carolina time) on the
Business Day of the requested Borrowing. Each such request for Borrowing shall be irrevocable and
shall specify (A) that a Swingline Loan is requested, (B) the date of the requested Borrowing
(which shall be a Business Day) and (C) the aggregate principal amount to be borrowed.
(d)
Maximum Number of Eurodollar Rate Loans
. Loans may be comprised of no more than
fifteen (15) Eurodollar Rate Loans outstanding at any time. For purposes hereof, Eurodollar Rate
Loans with separate or different Interest Periods will be considered as separate Eurodollar Rate
Loans even if their Interest Periods expire on the same date.
(e)
Minimum Amounts
. Each Revolving Loan shall be (i) in the case of Eurodollar Rate
Loans, in a minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess
thereof (or, if less, the amount by which the Total Revolving Committed Amount exceeds the
Revolving Obligations) and (ii) in the case of Base Rate Loans
,
$500,000 and integral multiples of
$100,000 in excess thereof (or, if less, the amount by which the Total Revolving Committed Amount
exceeds the Revolving Obligations). Each Swingline Loan shall be in a minimum principal amount of
$500,000 and integral multiples of $100,000 in excess thereof (or, if less, the amount by which the
Swingline Committed Amount exceeds the outstanding balance of the Swingline Loans).
Section 2.3
Interest
.
(a) Subject to
subsection (c)
below, the Loans shall bear interest at a per annum
rate, payable in arrears on each applicable Interest Payment Date (or at such other times as may be
specified herein), as follows:
(i)
Base Rate Loans
. During such periods as the Loans shall be comprised of
Base Rate Loans, the Adjusted Base Rate; and
(ii)
Eurodollar Rate Loans
. During such periods as the Loans shall be
comprised of Eurodollar Rate Loans, the Adjusted Eurodollar Rate.
(b)
Accrual of Interest
. Interest in respect of any Loan hereunder shall accrue from
and including the date of such Loan to but excluding the date on which such Loan is paid or, if
applicable, converted to a Loan of a different Interest Rate Type.
31
(c)
Legal Maximum
. Anything in this Credit Agreement or in any note evidencing any
Loan hereunder to the contrary notwithstanding, the interest rate on the Loans or with respect to
any drawing under a Letter of Credit shall in no event be in excess of the maximum rate permitted
by applicable Laws.
(d)
Computations of Interest and Fees
. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of the actual number of days
elapsed over a year of three hundred sixty (360) days, except with respect to computation of
interest on Base Rate Loans
determined by reference to the Prime Rate, which shall be calculated based on a year of three
hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be.
Section 2.4 Payments; Evidence of Indebtedness.
(a) Repayment of Loans.
(i)
Revolving Loans
. The principal amount of all Revolving Loans shall be due
and payable in full on the Revolving Commitment Termination Date.
(ii)
Swingline Loans
. The principal amount of all Swingline Loans shall be due
and payable in full on the earlier of (A) the maturity date agreed to by the Swingline
Lender (which shall not be less than three (3) days after the funding of such Swingline
Loan) or (B) the Revolving Commitment Termination Date.
(b)
Evidence of Indebtedness
. Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(c)
Register
. The Administrative Agent shall maintain the Register in accordance with
Section 12.6(c)
, including a record of (i) the amount of each outstanding Loan hereunder,
the Interest Rate Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lenders share thereof.
(d)
No Effect on Obligations
. The entries made in the accounts maintained pursuant to
subsection (b)
or
(c)
of this
Section 2.4
shall be
prima
facie
evidence of the existence and amounts of the Obligations recorded therein;
provided
,
however
, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans and the other Obligations in accordance with the terms of this Credit
Agreement.
(e)
Notes
. The Revolving Loans shall be evidenced by the Revolving Notes, and the
Swingline Loans shall be evidenced by the Swingline Note.
(f)
Allocation of Payments After Event of Default
. Notwithstanding any other
provisions of this Credit Agreement to the contrary, after the occurrence and during the
continuation of an Event of Default, all amounts collected or received on or in respect of the
Obligations (or other amounts owing under the Fundamental Documents in connection therewith) shall
be paid over or delivered as follows:
FIRST, to the payment of all unreimbursed costs and expenses (including reasonable
attorneys fees and expenses, excluding the allocated cost of internal counsel) of the
Administrative Agent which are payable by the Borrower or any of the other Credit Parties
pursuant to this Credit Agreement and any fees owed to the Administrative Agent by the
Borrower or any of the other Credit Parties pursuant to this Credit Agreement;
32
SECOND, to the payment of all unreimbursed costs and expenses of the Lenders which are
payable by the Borrower or any of the other Credit Parties under the Fundamental Documents;
THIRD, to the payment of all accrued but unpaid Facility Fees and Letter of Credit Fees
to the Revolving Lenders and all other fees owed to the Lenders by the Borrower or any of
the other Credit Parties pursuant to this Credit Agreement;
FOURTH, to the payment of accrued but unpaid interest on the Loans;
FIFTH, to the payment of the principal outstanding balance of the Loans and the Cash
Collateralization of LOC Obligations outstanding;
SIXTH, to the payment of the remainder of the Obligations or any other amounts then due
and owing under this Credit Agreement or any other Fundamental Document; and
SEVENTH, to the payment of the surplus, if any, to the Borrower or to whoever else may
be lawfully entitled to receive such surplus under any applicable court order.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) except as
otherwise provided, the Lenders shall receive amounts to be applied pursuant to
clauses
SECOND
,
THIRD
,
FOURTH
and
FIFTH
above, ratably
first
, between
the Revolving Lenders, in accordance with the relative proportion of Revolving Obligations
outstanding and
second
,
pro
rata
among the Revolving Lenders based on their
respective Revolving Commitment Percentages; and (iii) to the extent that any amounts available for
distribution pursuant to
clause FIFTH
above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in
the Cash Collateral Account, shall be subject to the Lien of the Administrative Agent thereon and
applied (A) first, to reimburse the Issuing Bank for any drawings under such Letters of Credit and
(B) then, following the expiration of all Letters of Credit, to all other obligations of the types
described in
clauses THIRD
,
FOURTH
and
FIFTH
above in the manner provided
in this
Section 2.4(f)
.
Section 2.5
Facility Fees, Letter of Credit Fees and Other Fees
.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving
Lender in accordance with its Revolving Commitment Percentage, a facility fee at a per annum rate
equal to (A) during any period in which the Borrower does not maintain an investment grade Debt
Rating, twenty basis points (0.20%) or otherwise (B) during any period in which the Borrower does
maintain an investment grade Debt Rating, fifteen basis points (0.15%) of the actual daily amount
of the Total Revolving Committed Amount (as such amount may be reduced pursuant to
Section
2.6
below), regardless of usage, or, if the Revolving Commitments have terminated, on the
outstanding amount of all Revolving Loans, Swingline Loans and LOC Obligations, (the
Facility
Fee
and collectively, for all the Revolving Lenders, the
Facility Fees
). The
Facility Fee shall accrue at all times during the Commitment Period (and thereafter so long as any
Revolving Loans, Swingline Loans and LOC Obligations remain outstanding), including at any time
during which one or more of the conditions in
subsection (b)
or
(c)
of
Section
5.2
is not met, and shall be due and payable quarterly in arrears on the first Business Day
after the end of each March, June, September and December for the immediately preceding fiscal
quarter (or a portion thereof), commencing with the first such date to occur after the Closing
Date, and on the Revolving Commitment Termination Date (and, if applicable, thereafter on demand).
33
(b)
Letter of Credit Fees
.
(i)
Standby Letter of Credit Issuance Fee
. In consideration of the issuance of
standby Letters of Credit, the Borrower shall pay to the Administrative Agent for the
account of each
Revolving Lender a fee (the
Standby Letter of Credit Fee
) on such Revolving
Lenders Revolving Commitment Percentage of the average daily maximum amount available to be
drawn under each such standby Letter of Credit computed at a per annum rate from the date of
issuance to the date of expiration or earlier cancellation equal to the Applicable
Percentage for Revolving Loans that are Eurodollar Rate Loans. The Standby Letter of Credit
Fee shall be payable quarterly in arrears on the first Business Day after the end of each
March, June, September and December for the immediately preceding fiscal quarter (or a
portion thereof) and on the Revolving Commitment Termination Date.
(ii)
Trade Letter of Credit Issuance Fee
. In consideration of the issuance of
trade Letters of Credit, the Borrower shall pay to the Administrative Agent for the account
of each Revolving Lender a fee (the
Trade Letter of Credit Fee
) on such Revolving
Lenders Revolving Commitment Percentage of the average daily maximum amount available to be
drawn under each such trade Letter of Credit computed at a per annum rate from the date of
issuance to the date of expiration or earlier cancellation equal to the Applicable
Percentage for Revolving Loans that are Eurodollar Rate Loans. The Trade Letter of Credit
Fee shall be payable quarterly in arrears on the first Business Day after the end of each
March, June, September and December for the immediately preceding fiscal quarter (or a
portion thereof) and on the Revolving Commitment Termination Date.
(iii)
Fronting Fee and Documentary and Processing Charges Payable to Issuing
Bank
. The Borrower shall pay directly to the Issuing Bank for its own account a
fronting fee (the
Issuing Bank Fee
) (i) with respect to each trade Letter of
Credit, at the rate specified in the Fee Letter, computed on the amount of such Letter of
Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a
commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate
separately agreed between the Borrower and the Issuing Bank, computed on the amount of such
increase, and payable upon the effectiveness of such amendment, and (iii) with respect to
each standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed
on the daily amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears. The Issuing Bank Fee shall be due and payable quarterly in arrears on the first
Business Day after the end of each March, June, September and December in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter of Credit,
and on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with
Section 1.3
. In
addition, the Borrower shall pay directly to the Issuing Bank for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the Issuing Bank relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.
(c) In addition, the Borrower agrees to pay to the Administrative Agent any and all other fees
not expressly covered hereunder on the dates and in the amounts set forth in the Fee Letter.
34
Section 2.6
Termination and/or Reduction of the Total Revolving Committed Amount
.
(a) Upon at least three (3) Business Days prior written, facsimile or telephonic notice
(provided that such telephonic notice is immediately followed by written confirmation) to the
Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Total Revolving Committed Amount. In the case of a partial
reduction, each such reduction of the Total Revolving Committed Amount shall be in a minimum
aggregate principal amount of $500,000 or an integral multiple thereof;
provided
,
however
, that the Total
Revolving Committed Amount may not be reduced to an amount less than the aggregate principal
amount of all Revolving Obligations then outstanding.
(b) On any date that the Total Revolving Committed Amount is reduced pursuant to
subsection (a)
above, each of the Swingline Committed Amount and the LOC Committed Amount
shall also be reduced proportionately, such that the LOC Committed Amount shall at all times remain
equal to fifteen percent (15%) of the Total Revolving Committed Amount, and the Swingline Committed
Amount shall at all times remain equal to the lesser of (i) twenty percent (20%) of the Total
Revolving Committed Amount, or (ii) $50,000,000.
(c) Any partial reduction of the Total Revolving Committed Amount hereunder shall be made
among the Revolving Lenders ratably in accordance with their respective Revolving Commitment
Percentages.
(d) Simultaneously with each termination or reduction of the Total Revolving Committed Amount,
the Borrower shall pay to the Administrative Agent, for the benefit of the Revolving Lenders, all
accrued and unpaid Facility Fees on the amount of the Total Revolving Committed Amount so
terminated or reduced through the date of such termination or reduction.
Section 2.7
Prepayments
.
(a) If at any time (i) the aggregate principal amount of Revolving Obligations outstanding
shall exceed the Total Revolving Committed Amount, (ii) the aggregate principal amount of Revolving
Obligations outstanding shall exceed the Borrowing Base, (iii) the aggregate principal amount of
LOC Obligations outstanding shall exceed the LOC Committed Amount or (iv) the aggregate principal
amount of all Swingline Loans outstanding shall exceed the Swingline Committed Amount, the Borrower
will immediately prepay Revolving Obligations (or, in the case of a prepayment in respect of
Letters of Credit under
clause (iii)
, to a cash collateral account) to the extent necessary
to eliminate any such excess;
provided
that any such prepayment shall be subject to the
terms of
Section 3.5
.
(b) Subject to the terms of
Section 3.5
hereof, the Borrower shall have the right at
its option at any time and from time to time to prepay any of the Loans hereunder;
provided
(i) any such prepayment of a Base Rate Loan, in whole or in part, shall be (A) received not later
than 11:00 a.m. (Charlotte, North Carolina time) on the Business Day that is the date of such
prepayment, (B) in the principal amount of $500,000 or such greater amount which is an integral
multiple of $250,000 if prepaid in part, and (C) accompanied by a Notice of Prepayment, and
(ii) any such prepayment of a Eurodollar Rate Loan, in whole or in part, shall be (A) received not
later than 11:00 a.m. (Charlotte, North Carolina time) on the Business Day that is the date of such
prepayment, (B) in the principal amount of $1,000,000 or such greater amount which is an integral
multiple of $100,000 if prepaid in part, and (C) accompanied by a Notice of Prepayment. Each
Notice of Prepayment shall specify the prepayment date, each Loan to be prepaid and the principal
amount thereof, shall be irrevocable and shall commit the Borrower to prepay each such Loan in the
amount and on the date stated therein.
35
(c) Any prepayments pursuant to this
Section 2.7
not otherwise specifically provided
for in this
Section 2.7
, shall be applied as provided in
Section 2.4(f)
hereof.
(d) All prepayments of Loans under this
Section 2.7
shall, as regards Interest Rate
Type, be applied first to Base Rate Loans, and subject to
Section 2.7(f)
hereof, then to
Eurodollar Rate Loans in the order of the scheduled expiry of Interest Periods with respect thereto
(
i.e.
, those Eurodollar Rate Loans with Interest Periods which end sooner would be paid
before those with Interest Periods which end later).
(e) All prepayments under this
Section 2.7
shall be accompanied by accrued but unpaid
interest on the principal amount being prepaid to (but not including) the date of prepayment.
(f) If on any day on which Loans would otherwise be required to be prepaid pursuant to this
Section 2.7
, but for the operation of this
Section 2.7(f)
(each a
Prepayment
Date
), the amount of such required prepayment exceeds the then outstanding aggregate principal
amount of Base Rate Loans which are of the type required to be prepaid (
i.e.
, Revolving
Loans), and no Default or Event of Default exists or is continuing, then on such Prepayment Date,
(i) the Borrower shall deposit Dollars into the Cash Collateral Account in an amount equal to such
excess, and only the outstanding Base Rate Loans which are of the type required to be prepaid shall
be required to be prepaid on such Prepayment Date and (ii) on the last day of each Interest Period
after such Prepayment Date in effect with respect to a Eurodollar Rate Loan which is of the type
required to be prepaid, the Administrative Agent is irrevocably authorized and directed to apply
funds from the Cash Collateral Account (and liquidate investments held in the Cash Collateral
Account, as necessary) to prepay such Eurodollar Rate Loans for which the Interest Period is then
ending to the extent funds are available in the Cash Collateral Account.
Section 2.8
Default Interest
.
(a) In the event that, and for so long as, any Event of Default shall have occurred and be
continuing, the Borrower shall on demand from time to time pay interest, to the extent permitted by
applicable Laws, on all Loans and overdue amounts outstanding up to (but not including) the date of
actual payment of such Loan or overdue amount (after as well as before judgment) (i) for the
remainder of the then current Interest Period for each Eurodollar Rate Loan, at three percent (3%)
in excess of the rate then in effect for each such Eurodollar Rate Loan (it being understood by the
parties hereto that no Eurodollar Rate Loan may be continued into a subsequent Interest Period and
no Base Rate Loan may be converted to a Eurodollar Rate Loan, at any time when an Event of Default
shall have occurred and then be continuing unless the Administrative Agent and the Required Lenders
otherwise consent), (ii) for all periods subsequent to the then current Interest Period for each
Eurodollar Rate Loan and for all Base Rate Loans of a certain type (
i.e.
, Revolving Loan),
at three percent (3%) in excess of the rate then in effect for Base Rate Loans of the same type and
(iii) for all other overdue amounts hereunder, at three percent (3%) in excess of the rate then in
effect for Base Rate Loans that are Revolving Loans;
provided
,
however
, that if an
Event of Default is waived by the applicable Lenders in accordance with the terms of this Credit
Agreement, then the provisions of this
Section 2.8(a)
shall also be deemed waived from and
after the effective date of the applicable waiver.
(b) In the event, and on each occasion, that on or before the day on which the Eurodollar Rate
for a Eurodollar Rate Loan is to be determined as set forth herein, (i) the Administrative Agent
shall have received notice from any Lender of such Lenders determination (which determination,
absent manifest error, shall be conclusive) that Dollar deposits in an amount equal to the
principal amount of such Lenders Eurodollar Rate Loan are not generally available in the London
interbank market or that the rate at which such Dollar deposits are being offered will not
adequately and fairly reflect the cost to such Lender of making or maintaining the principal amount
of such Lenders Eurodollar Rate Loan during the applicable Interest Period or (ii) the
Administrative Agent shall have determined that reasonable means do not exist for ascertaining the
applicable Eurodollar Rate, the Administrative Agent shall, as soon as practicable thereafter, give
written or facsimile notice of such determination by such Lender or the Administrative Agent to the
Borrower and the Lenders and any request by the Borrower for a Eurodollar Rate Loan pursuant to
Section 2.2
or conversion to or continuation as a Eurodollar Rate Loan pursuant to
Section 2.9
, made after receipt of such notice and until the circumstances giving rise to
such notice no longer exist, shall be deemed to be a request for a Base Rate Loan;
provided
,
however
, that in the circumstances described in clause
(i)
above,
such deemed request shall only apply to the affected Lenders portion thereof.
36
Section 2.9
Continuation and Conversion of Loans
.
The Borrower shall have the right, at any time, (i) to convert any Eurodollar Rate Loan or
portion thereof to a Base Rate Loan, (ii) to continue any Eurodollar Rate Loan for a successive
Interest Period, or (iii) to convert any Base Rate Loan or portion thereof to a Eurodollar Rate
Loan, subject to the following:
(a) at least three (3) Business Days prior to any conversion or continuation hereunder, the
Borrower shall deliver to the Administrative Agent written notice with respect thereto in the form
of a Loan Notice (or by telephonic notice promptly confirmed in writing); such notice shall be
irrevocable and to be effective, must be received by the Administrative Agent on the day required
not later than 11:00 a.m. (Charlotte, North Carolina time);
(b) unless the Administrative Agent and the Required Lenders otherwise consent, no Default or
Event of Default shall have occurred and be continuing at the time of any conversion to a
Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan into a subsequent Interest Period;
(c) the aggregate principal amount of Loans continued as, or converted to, Eurodollar Rate
Loans as part of the same continuation or conversion, shall be in a minimum amount of $1,000,000 or
in such greater amount which is an integral multiple of $100,000;
(d) if fewer than all Loans of a particular type at the time outstanding shall be continued or
converted, such continuation or conversion shall be made
pro
rata
among the
applicable Lenders in accordance with the respective principal amount of such Loans held by the
applicable Lenders immediately prior to such continuation or conversion;
(e) no Base Rate Loan (or portion thereof) may be converted to a Eurodollar Rate Loan and no
Eurodollar Rate Loan may be continued as a Eurodollar Rate Loan if, after such conversion or
continuation, and after giving effect to any concurrent prepayment of Loans, an aggregate of more
than fifteen (15) separate Eurodollar Rate Loans would be outstanding hereunder with respect to a
Lender (for purposes of determining the number of such Loans outstanding, Loans with different
Interest Periods shall be counted as different Eurodollar Rate Loans even if made on the same
date);
(f) the Interest Period with respect to a new Eurodollar Rate Loan effected by a continuation
or conversion shall commence on the date of such continuation or conversion;
(g) if a Eurodollar Rate Loan is converted to a Base Rate Loan other than on the last day of
the Interest Period with respect thereto, the amounts required by
Section 3.5
shall be paid
upon such conversion; and
(h) each request for a continuation as, or conversion to, a Eurodollar Rate Loan which fails
to state an applicable Interest Period shall be deemed to be a request for an Interest Period of
one (1) month.
37
Subject to the foregoing, in the event that the Borrower shall not give notice to continue or
convert any Eurodollar Rate Loan as provided above, such Loan (unless repaid) shall automatically
be converted to a Base Rate Loan at the expiration of the then current Interest Period. The
Administrative Agent shall, after it receives notice from the Borrower, promptly give the Lenders
notice of any continuation or conversion.
Section 2.10
Payments Generally; Administrative Agents Clawback
.
(a)
General
. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agents Office in Dollars and in immediately available funds not later than 3:00 p.m. (Charlotte,
North Carolina time) on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Revolving Commitment Percentage (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lenders
Lending Office. All payments received by the Administrative Agent after 3:00 p.m. (Charlotte,
North Carolina time) shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.
(b) (i)
Funding by Lenders; Presumption by Administrative Agent
. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon (Charlotte, North Carolina time) on the date of such Borrowing) that
such Lender will not make available to the Administrative Agent such Lenders share of such
Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with
Section 2.2
(or, in the case of a
Borrowing of Base Rate Loans, that such Lender has made such share available in accordance
with and at the time required by
Section 2.2
) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lenders Loan included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.
38
(ii)
Payments by Borrower; Presumptions by Administrative Agent
. Unless the
Administrative Agent shall have received notice from the Borrower prior to 2:00 p.m.
(Charlotte, North Carolina time) on the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so
distributed to such Lender or the Issuing Bank, in immediately available funds with
interest thereon, for each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this
subsection (b)
shall be conclusive, absent manifest error.
(c)
Failure to Satisfy Conditions Precedent
. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this
Article II
, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Extension of Credit set forth in
Article V
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(d)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments
pursuant to
Section 12.4(c)
are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under
Section 12.4(c)
on
any date required hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under
Section 12.4(c)
.
(e)
Funding Source
. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.
Section 2.11 Additional Provisions Relating to Letters of Credit.
(a) Limitations on Obligation to Issue of Letters of Credit.
(i) The Issuing Bank shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date.
39
(ii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit
if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such
Letter of Credit, or any Law applicable to the Issuing Bank or any request or
directive (whether or not having the force of Law) from any Governmental Authority
with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing
Bank refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Bank with respect to such
Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Issuing Bank in good faith deems
material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of
the Issuing Bank applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the Issuing
Bank, such Letter of Credit is in an initial stated amount less than $100,000, in
the case of a commercial Letter of Credit, or $500,000, in the case of a standby
Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency other than
Dollars; or
(E) a default of any Lenders obligations to fund under
Section 2.11(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
Issuing Bank has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the Issuing Banks risk with respect to such Lender.
(iii) The Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would
not be permitted at such time to issue such Letter of Credit in its amended form under the
terms hereof.
(iv) The Issuing Bank shall be under no obligation to amend any Letter of Credit if
(A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(v) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the Issuing Bank shall have
all of the benefits and immunities (A) provided to the Administrative Agent in
Article XI
with respect to any acts taken or omissions suffered by the Issuing Bank
in connection with Letters of Credit issued by it or proposed to be issued by it and LOC
Documents pertaining to such Letters of Credit as fully as if the term Administrative
Agent as used in
Article XI
included the Issuing Bank with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the Issuing Bank.
40
(b)
Procedures for Issuance and Amendment of Letters of Credit
.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the Issuing Bank (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Authorized Officer of the Borrower. Such Letter of Credit Application must be received by
the Issuing Bank and the Administrative Agent not later than 11:00 a.m. (Charlotte, North
Carolina time) at least two (2) Business Days (or such later date and time as the
Administrative Agent and the Issuing Bank may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the case may be.
In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the Issuing Bank:
(A) the proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the Issuing
Bank may reasonably require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the Issuing Bank (A) the Letter of Credit to be amended; (B) the proposed
date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the Issuing Bank may reasonably require.
Additionally, the Borrower shall furnish to the Issuing Bank and the Administrative Agent
such other documents and information pertaining to such requested Letter of Credit issuance
or amendment, including any LOC Documents, as the Issuing Bank or the Administrative Agent
may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the Issuing Bank will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the Issuing Bank will provide the Administrative Agent with a copy thereof. Unless the
Issuing Bank has received written notice from any Lender, the Administrative Agent or any
Credit Party, at least one (1) Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in
Article V
shall not then be satisfied, then, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date, issue a Letter of Credit
for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the Issuing Banks usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Issuing Bank a risk participation in such Letter of Credit in an amount equal to
the product of such Lenders Revolving Commitment Percentage
multiplied
by the
amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
Issuing Bank will also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the Issuing Bank shall notify the Borrower and the
Administrative Agent thereof. Not later than 2:00 p.m. (Charlotte, North Carolina) on the
date of any payment by the Issuing Bank under a Letter of Credit (each such date, an
Honor Date
), the Borrower shall reimburse the Issuing Bank through the
Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the Issuing Bank by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the
Unreimbursed Amount
), and the amount of such Lenders Revolving Commitment
Percentage thereof. In such event, the Borrower shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.2(e)
for the principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Revolving Commitments and the conditions set forth
in
Section 5.2
(other than the delivery of a Loan Notice). Any notice given by the
Issuing Bank or the Administrative Agent pursuant to this
Section 2.11(c)(i)
may be
given by telephone if
immediately confirmed in writing;
provided
that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.
41
(ii) Each Lender shall upon any notice pursuant to
Section 2.11(c)(i)
make
funds available to the Administrative Agent for the account of the Issuing Bank at the
Administrative Agents Office in an amount equal to its Revolving Commitment Percentage of
the Unreimbursed Amount not later than 1:00 p.m. (Charlotte, North Carolina time) on the
Business Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of
Section 2.11(c)(iii)
, each Lender that so makes funds available shall
be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Issuing Bank.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in
Section 5.2
cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
Issuing Bank an LOC Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which LOC Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Adjusted Base Rate
plus
three percent (3%). In such
event, each Lenders payment to the Administrative Agent for the account of the Issuing Bank
pursuant to
Section 2.11(c)(ii)
shall be deemed payment in respect of its
participation in such LOC Borrowing and shall constitute an LOC Advance from such Lender in
satisfaction of its participation obligation under this
Section 2.11
.
(iv) Until each Lender funds its Loan or LOC Advance pursuant to this
Section 2.11(c)
to reimburse the Issuing Bank for any amount drawn under any Letter
of Credit, interest in respect of such Lenders Revolving Commitment Percentage of such
amount shall be solely for the account of the Issuing Bank.
(v) Each Lenders obligation to make Loans or LOC Advances to reimburse the Issuing
Bank for amounts drawn under Letters of Credit, as contemplated by this
Section 2.11(c)
, shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Bank, the Borrower or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided
,
however
, that each Lenders obligation to make Loans pursuant to
this
Section 2.11(c)
is subject to the conditions set forth in
Section 5.2
(other than delivery by the Borrower of a Loan Notice). No such making of an LOC Advance
shall relieve or otherwise impair the obligation of the Borrower to reimburse the Issuing
Bank for the amount of any payment made by the Issuing Bank under any Letter of Credit,
together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account
of the Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing
provisions of this
Section 2.11(c)
by the time specified in
Section 2.11(c)(ii)
, the Issuing Bank shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to the Issuing Bank at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the Issuing Bank in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Issuing Bank in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lenders Loan included in the relevant Borrowing or LOC
Advance in respect of the relevant LOC Borrowing, as the case may be. A certificate of the
Issuing Bank submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this
clause (vi)
shall be conclusive absent manifest error.
42
(d)
Repayment of Participations
.
(i) At any time after the Issuing Bank has made a payment under any Letter of Credit
and has received from any Lender such Lenders LOC Advance in respect of such payment in
accordance with
Section 2.11(c)
, if the Administrative Agent receives for the
account of the Issuing Bank any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Revolving Commitment Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such
Lenders LOC Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the Issuing
Bank pursuant to
Section 2.11(c)(i)
is required to be returned under any of the
circumstances described in
Section 12.5
(including pursuant to any settlement
entered into by the Issuing Bank in its discretion), each Lender shall pay to the
Administrative Agent for the account of the Issuing Bank its Revolving Commitment Percentage
thereof on demand of the Administrative Agent,
plus
interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the termination of this
Credit Agreement.
(e)
Obligations Absolute
. The obligation of the Borrower to reimburse the Issuing
Bank for each drawing under each Letter of Credit and to repay each LOC Borrowing shall be
absolute, unconditional and irrevocable (provided that if there is any gross negligence or willful
misconduct by the Issuing Bank, then such reimbursement by Borrower shall not be deemed to waive or
otherwise impair any claim of Borrower against the Issuing Bank on account of such gross negligence
or willful misconduct as determined by a court of competent jurisdiction in a final and
non-appealable judgment), and shall be paid strictly in accordance with the terms of this Credit
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Credit
Agreement, or any other Fundamental Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank or any other Person, whether in connection with this Credit
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;
43
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Issuing Bank under such Letter of Credit against presentation
of a draft or certificates that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the Issuing Bank under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrowers
instructions or other irregularity, the Borrower will as soon as possible notify the Issuing Bank.
The Borrower shall be conclusively deemed to have waived any such claim against the Issuing Bank
and its correspondents unless such notice is given as aforesaid;
provided
that such waiver
shall not be ultimately applicable to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of the Issuing Bank or
from a breach in bad faith of the Issuing Banks obligations hereunder.
(f)
Role of Issuing Bank
. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the Issuing Bank, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or LOC Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit;
provided
,
however
, that this assumption is not intended to, and
shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the Issuing Bank, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the Issuing Bank shall be liable or responsible for any of the matters described in
clauses (i)
through
(v)
of
Section 2.11(e)
;
provided
,
however
, that anything herein to the contrary notwithstanding, the Borrower may have a
claim against the Issuing Bank, and the Issuing Bank may be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered
by the Borrower which the Borrower proves were caused by the Issuing Banks willful misconduct or
gross negligence or the Issuing Banks willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the Issuing Bank shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
44
(g)
Cash Collateral
. Upon the request of the Administrative Agent, (i) if the Issuing
Bank has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an LOC Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any LOC
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then outstanding amount of all LOC Obligations.
Sections 2.4
and
2.7
set forth certain additional requirements to deliver Cash Collateral hereunder.
The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Bank and the
Lenders, a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in the Cash Collateral Account.
(h)
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the Issuing
Bank and the Borrower when a Letter of Credit is issued (including any such agreement applicable to
an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits (the
UCP
), as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each trade Letter of Credit.
(i)
Conflict with LOC Documents
. In the event of any conflict between the terms
hereof and the terms of any LOC Document, the terms hereof shall control.
(j)
Letters of Credit Issued for Subsidiaries
. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the Issuing Bank hereunder for any
and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and
that the Borrowers business derives substantial benefits from the businesses of such Subsidiaries.
Section 2.12
Additional Provisions Relating to Swingline Loans
.
The Swingline Lender may, at any time, in its sole discretion, by written notice to the
Borrower and the Revolving Lenders, demand repayment of its Swingline Loans by way of a Revolving
Loan advance, in which case the Borrower shall be deemed to have requested a Revolving Loan advance
comprised solely of Base Rate Loans in the amount of such Swingline Loans;
provided
,
however
, that any such demand shall be deemed to have been given one (1) Business Day prior
to the Revolving Commitment Termination Date and on the date of the occurrence of any Event of
Default described in
Article VIII
and upon acceleration of the indebtedness hereunder and
the exercise of remedies in accordance with the provisions of
Article VIII
. Each Revolving
Lender hereby irrevocably agrees to make its Revolving Commitment Percentage of each such Revolving
Loan in the amount, in the manner and on the date specified in the preceding sentence
notwithstanding (a) that the amount of such Revolving Loan may not comply with the minimum amount
for advances of Revolving Loans otherwise required hereunder, (b) whether any conditions specified
in
Section 5.2
are then satisfied, (c) whether a Default or an Event of Default then
exists, (d) failure of any such request or deemed request for a Revolving Loan to be made by the
time otherwise required hereunder, (e) whether the date of such Borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (f) any termination of the
Revolving Commitments relating thereto immediately prior to or contemporaneously with such
Borrowing. In the event
45
that any Revolving Loan cannot for any reason be made on the date
otherwise required above (including as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Credit Party), then each Revolving Lender
hereby agrees that it shall forthwith purchase (as of the date such Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after such date and prior
to such purchase) from the Swingline Lender such Participation Interests in the outstanding
Swingline Loans as shall be necessary to
cause each such Revolving Lender to share in such Swingline Loans ratably based upon its
Revolving Commitment Percentage (determined before giving effect to any termination of the
Revolving Commitments pursuant to
Article VIII
);
provided
that (i) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as
of which the respective Participation Interests are funded and (ii) at the time any purchase of
Participation Interests pursuant to this
Section 2.12
is actually made, the purchasing
Revolving Lender shall be required to pay to the Swingline Lender, to the extent not paid to the
Swingline Lender by the Borrower in accordance with the terms hereof, interest on the principal
amount of Participation Interests purchased for each day from and including the day upon which such
Borrowing would otherwise have occurred to but excluding the date of payment for such Participation
Interests, at the rate equal to the Federal Funds Rate.
Section 2.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a)
Loans
. Each advance of a Revolving Loan, each payment or prepayment of the
principal of the Revolving Loans (other than Swingline Loans, the principal of which shall be paid
solely to the Swingline Lender until the funding of the other Lenders participation interests
therein), each reimbursement obligation arising from drawings under Letters of Credit or other
payment of LOC Obligations, each payment of interest on the Revolving Loans (other than Swingline
Loans, the interest on which shall be paid solely to the Swingline Lender until the funding of the
other Lenders participation interests therein), each payment of the Facility Fees, each payment of
a Letter of Credit Fee, each reduction of the Revolving Commitments and each continuation or
conversion of Revolving Loans shall be allocated
pro
rata
among the Revolving
Lenders according to their respective Revolving Commitment Percentages; and
(b)
Advances
.
(i) No Lender shall be responsible for the failure or delay by any other Lender in its
obligation to make its ratable share of a Borrowing hereunder;
provided
, however,
that the failure of any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder.
(ii) Unless the Borrower or any Lender has notified the Administrative Agent prior to
the date any payment is required to be made by it to the Administrative Agent hereunder,
that the Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled thereto. If and to the extent
that such payment was not in fact made to the Administrative Agent in immediately available
funds, then:
(A) if the Borrower failed to make such payment, each Lender shall forthwith on
demand repay to the Administrative Agent the portion of such assumed payment that
was made available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
46
(B) if any Lender failed to make such payment, such Lender shall forthwith on
demand pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the
Compensation Period
)
at a rate per annum equal to the Federal Funds Rate from time to time in effect. If
such Lender does not pay such amount forthwith upon the Administrative Agents
demand therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its Commitment
or to prejudice any rights that the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender hereunder. A notice of
the Administrative Agent to any Lender with respect to any amount owing under this
Section 2.13(b)(ii)(B)
shall be conclusive, absent manifest error.
Section 2.14
Sharing of Payments
.
(a)
Lenders
. The Lenders agree that, in the event that any Lender shall obtain
payment in respect of any Revolving Loan, LOC Obligation or any other obligation owing to such
Lender under this Credit Agreement through the exercise of a right of setoff, bankers lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, in
excess of its
pro
rata
share of such payment as provided in this Credit Agreement,
such Lender shall promptly purchase from the other Lenders a Participation Interest in such
Revolving Loan, LOC Obligation or other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all the Lenders share such
payment in accordance with their respective Revolving Commitment Percentages, as provided in this
Credit Agreement. The Lenders further agree that if payment to any such Lender obtained by such
Lender through the exercise of a right of setoff, bankers lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender that shall have shared the
benefit of such payment shall, by repurchase of a Participation Interest theretofore sold, return
its share of that benefit (together with its share of any accrued interest payable with respect
thereto) to each such Lender whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Lender so purchasing such a Participation Interest may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff, bankers lien or
counterclaim, with respect to such participation as fully as if such Lender were a holder of such
Revolving Loan, LOC Obligation or other obligation in the amount of such Participation Interest.
If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this
subsection (a)
applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a manner consistent
with the rights of the Lenders under this
subsection (a)
to share in the benefits of any
recovery on such secured claim.
(b)
Lenders and Administrative Agent
. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the Administrative
Agent to the Administrative Agent or such other Lender pursuant to this Credit Agreement on the
date when such amount is due, such payments shall be made together with interest thereon for each
date from the date such amount is due until the date such amount is paid to the Administrative
Agent or such other Lender at a rate per annum equal to the Federal Funds Rate.
47
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.1
Taxes
.
(a)
Payments Free of Taxes
. Any and all payments by or on account of any obligation
of a Credit Party hereunder or under any other Fundamental Document shall be made free and clear of
and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided
that if a Credit Party shall be required by applicable Laws to withhold or deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required withholdings or deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank, as the case may be, receives an amount equal to the sum it would have received had no
such withholdings or deductions been made, (ii) such Credit Party shall make such withholdings or
deductions and (iii) such Credit Party shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with applicable Laws.
(b)
Payment of Other Taxes by the Borrower
. Without limiting the provisions of
subsection (a)
above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.
(c)
Indemnification by the Borrower
. The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Bank, within ten (10) days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or an Issuing Bank (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent
manifest error.
(d)
Evidence of Payments
. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e)
Status of Lenders
. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Fundamental Document, shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable Laws as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other documentation prescribed by
applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.
48
Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Credit Agreement (and from
time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of IRS Form W-8BEN claiming eligibility for benefits of an
income tax treaty to which the United States is a party,
(ii) duly completed copies of IRS Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a bank within the meaning of section 881(c)(3)(A) of the
Code, (B) a 10 percent shareholder of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation described in section
881(c)(3)(C) of the Code and (y) duly completed copies of IRS Form W-8BEN, or
(iv) any other form prescribed by applicable Laws as a basis for claiming exemption
from or a reduction in United States federal withholding tax, duly completed, together with
such supplementary documentation as may be prescribed by applicable Laws to permit the
Borrower to determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lenders status for U.S. withholding tax purposes, each
Lender agrees to deliver to the Administrative Agent or the Borrower, as the Administrative Agent
or the Borrower reasonably shall have requested in writing, on or prior to the Closing Date, and
promptly thereafter, such other documents and forms required by any relevant taxing authorities
under the Laws of any other jurisdiction, duly executed and completed by such Lender, as are
required under such Laws to confirm such Lenders entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all payments to be made to such Lender
outside of the United States by the Borrower pursuant to this Credit Agreement or otherwise to
establish such Lenders status for withholding tax purposes in such other jurisdiction. Each
Lender shall promptly (i) notify the Administrative Agent of any change in circumstances which
would modify or render invalid any such claimed exemption or reduction, and (ii) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as
may be reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any such jurisdiction that the Borrower make any deduction or
withholding for taxes from amounts payable to such Lender. Additionally, the Borrower shall
deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender
reasonably shall have requested in writing, on or prior to the Closing Date, and promptly
thereafter, on the written request therefor, such documents and forms required by any relevant
taxing authorities under the applicable Laws of any jurisdiction, duly executed and completed by
the Borrower, as are reasonably required to be furnished by such Lender or the Administrative Agent
under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes
or Other Taxes, or otherwise in connection with the Fundamental Documents, with respect to such
jurisdiction.
49
(f)
Treatment of Certain Refunds
. If the Administrative Agent, any Lender or the
Issuing Bank determines, in good faith in its sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund),
provided
that the Borrower,
upon the request of the Administrative Agent, such Lender or the Issuing Bank, agrees to repay the
amount paid over to the Borrower (
plus
any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, such Lender or the Issuing Bank
in the event that the Administrative Agent, such Lender or the Issuing Bank is required to repay
such refund to such Governmental Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or the Issuing Bank to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the Borrower or any other
Person.
Section 3.2
Illegality
.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Section 3.3
Inability to Determine Rates
.
If the Required Lenders determine that for any reason in connection with any applicable
request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a Borrowing of Base Rate
Loans in the amount specified therein.
50
Section 3.4
Increased Cost; Capital Adequacy; Reserves on Eurodollar Rate Loans
.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or the Issuing Bank;
(ii) subject any Lender or the Issuing Bank to any Tax of any kind whatsoever with
respect to this Credit Agreement, any Letter of Credit, any participation in a Letter of
Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the Issuing Bank in respect thereof (all except for Indemnified Taxes or
Other Taxes covered by
Section 3.1
and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the Issuing Bank); or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Credit Agreement or Eurodollar Rate Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing
Bank hereunder (whether of principal, interest or any other amount) in each case by or in an amount
which such Lender in its sole judgment shall deem material, then, upon request of such Lender or
the Issuing Bank, the Borrower will pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.
(b)
Capital Requirements
. If any Lender or the Issuing Bank determines that any
Change in Law affecting such Lender or the Issuing Bank or any Lending Office of such Lender or
such Lenders or the Issuing Banks holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lenders or the Issuing Banks capital
or on the capital of such Lenders or the Issuing Banks holding company, if any, as a consequence
of this Credit Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lenders or the Issuing Banks
holding company could have achieved but for such Change in Law (taking into consideration such
Lenders or the Issuing Banks policies and the policies of such Lenders or the Issuing Banks
holding company with respect to capital adequacy), by an amount deemed by such Lender in its sole
judgment to be material then from time to time the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lenders or the Issuing Banks holding company for any such reduction suffered
to the extent attributable to this Credit Agreement or the Loans made or Letters of Credit issued
pursuant hereto;
provided
that the Borrower shall not be liable to any Lender in respect of
any such reduction with respect to any period of time more than three (3) months before the
Borrower receives from such Lender the certificates required by the first sentence of
Section
3.4(c).
51
(c)
Certificates for Reimbursement
. A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding
company, as the case may be, as specified in
subsection (a)
or
(b)
of this
Section and delivered to the Borrower in detail sufficient to allow the Borrower to verify the
computation thereof shall be conclusive absent manifest error. The Borrower shall pay such Lender
or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten
(10) days after receipt thereof.
(d)
Delay in Requests
. Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lenders or the Issuing Banks right to demand such compensation,
provided
that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than three (3) months prior to the date that such Lender or the Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lenders or the Issuing Banks intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the three (3)
month period referred to above shall be extended to include the period of retroactive effect
thereof).
Section 3.5
Compensation for Losses
.
Upon delivery of a certificate, as hereinafter provided by any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section 12.14
,
including any loss or expense arising form the liquidation or reemployment of funds
obtained by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.5
, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Loan by a matching deposit or other Borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.
Each Lender shall deliver to the Administrative Agent as soon as reasonably practicable but in
no event more than thirty (30) Business Days after (x) in the case of a prepayment or conversion
prior to the last day of the Interest Period for a Eurodollar Rate Loan, the date of such
prepayment or conversion of such Loan or (y) in the case of a failure to borrow, continue or
convert, the last day of the Interest Period for such Loan which would have commenced on the date
of such failure to borrow, continue or convert, a certificate setting forth the amount of such loss
and expenses (and in reasonable detail the manner of computation thereof) as determined by such
Lender, which certificate shall be conclusive absent manifest
error. Promptly after the end of such period of thirty (30) Business Days, the Administrative
Agent shall notify the Borrower of all certificates received by it during such period and shall
deliver to the Borrower copies of all certificates received by the Administrative Agent from the
Lenders. The Borrower shall pay each Lender timely delivering a certificate under this
Section
3.5
the amount shown on the applicable certificate delivered by such Lender on the next
Interest Payment Date which is at least five (5) Business Days following the Borrowers receipt of
such certificate.
52
Section 3.6
Mitigation Obligations; Replacement of Lenders
.
(a)
Designation of a Different Lending Office
. If any Lender requests compensation
under
Section 3.4
, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to
Section 3.1
, or if
any Lender gives a notice pursuant to
Section 3.2
, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to
Section 3.1
or
3.4
, as the case may be, in the future,
or eliminate the need for the notice pursuant to
Section 3.2
, as applicable, and (ii) in
each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)
Replacement of Lenders
. If any Lender requests compensation under
Section 3.4
, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 3.1
, the
Borrower may replace such Lender in accordance with
Section 12.14
.
Section 3.7
Survival Losses
.
All of the Borrowers obligations under this
Article III
shall survive termination of
the Revolving Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES
In order to induce the Administrative Agent, the Issuing Bank and the Lenders to enter into
this Credit Agreement, to make the Loans, to make the Extensions of Credit hereunder, the Credit
Parties, jointly and severally, make the following representations and warranties to, and
agreements with, the Administrative Agent, the Issuing Bank and the Lenders, all of which shall
survive the execution and delivery of this Credit Agreement, the issuance of any Notes evidencing
any of the Loans hereunder, the making of the Loans and the issuance of the Letters of Credit:
Section 4.1
Existence and Power
.
(a) The Borrower is a limited partnership duly organized, validly existing and in good
standing under the laws of Delaware and is qualified to do business and is in good standing in all
jurisdictions where both (i) the nature of its properties or business so requires and (ii) the
failure to be in good standing is reasonably likely to have a Material Adverse Effect. Ventas is
the sole general partner of the Borrower.
Schedule 4.1(a)
hereto contains a true and
complete list of all of the limited partners of the Borrower as of the Closing Date.
53
(b) Ventas is a corporation duly organized, validly existing and in good standing under the
laws of Delaware and is qualified to do business and is in good standing in all jurisdictions where
both (i) the nature of its properties or business so requires and (ii) the failure to be in good
standing is reasonably likely to have a Material Adverse Effect.
(c) Each Credit Party acquired or created after the Closing Date shall be a corporation,
limited liability company, limited partnership, general partnership or business trust duly
organized, validly existing and in good standing under the laws of its jurisdiction of organization
and shall be qualified to do business and shall be in good standing in all jurisdictions where both
(i) the nature of its properties or business so requires and (ii) the failure to be in good
standing is reasonably likely to have a Material Adverse Effect.
(d) Each of the Credit Parties has the partnership, company or corporate, as the case may be,
power and authority (i) to own its respective properties and carry on its respective business as
now being, or as now intended to be, conducted where the failure to do so is reasonably likely to
have a Material Adverse Effect, (ii) to execute, deliver and perform, as applicable, its
obligations under the Fundamental Documents to which it is or will be a party; and (iii) in the
case of the Borrower, to execute, deliver and perform its obligations under this Credit Agreement
and any Notes evidencing any of the Loans hereunder and to borrow hereunder; and in the case of the
Guarantors, to guaranty the Obligations as contemplated by
Article IX
hereof.
(e) Ventas has the corporate power and authority as the Borrowers general partner, on behalf
of the Borrower, to execute, deliver and perform the obligations of the Borrower under the
Fundamental Documents (including this Credit Agreement and any notes evidencing any of the Loans
hereunder) and any other documents contemplated hereby or thereby to which the Borrower is or will
be a party; and to cause the Borrower to borrow hereunder.
Section 4.2
Authority and No Violation
.
Except as set forth in
Schedule 4.2
hereto, the execution, delivery and performance of
this Credit Agreement and the other Fundamental Documents to which it is a party, by each Credit
Party and by the Borrowers general partner, Ventas, on behalf of the Borrower, and, in the case of
the Borrower, the Borrowings hereunder and the execution, delivery and performance of the Notes
evidencing any of the Loans hereunder and, in the case of each Guarantor, the guaranty of the
Obligations as contemplated in
Article IX
hereof, (i) have been duly authorized by all
necessary company, partnership or corporate (as applicable) action on the part of each such Credit
Party, (ii) will not constitute a violation of any provision of applicable Laws or any order of any
Governmental Authority applicable to such Credit Party or any of its respective properties or
assets, (iii) will not violate any provision of the Organizational Documents of any Credit Party or
any Subsidiary of a Credit Party, or any provision of any material indenture, agreement, bond,
note, mortgage, deed of trust, or other similar instrument to which such Credit Party is a party or
by which such Credit Party or any of its respective properties or assets are bound or to which such
Credit Party is subject, (iv) will not be in conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under, or create any right to terminate, any
such indenture, agreement, bond, note, mortgage, deed of trust, or other instrument, and (v) will
not result in the creation or imposition of (or the obligation to create or impose) any Lien
whatsoever upon any of the properties or assets of any of the Credit Parties or any Subsidiary of a
Credit Party other than pursuant to this Credit Agreement or the other Fundamental Documents.
54
Section 4.3
Governmental Approval; Other Consents
.
All authorizations, approvals, orders, consents, licenses, registrations or filings from or
with any Governmental Authority or any other Person necessary or required in connection with the
execution, delivery and performance by any Credit Party or Ventas (as the Borrowers general
partner on behalf of the Borrower) of this Credit Agreement and the other Fundamental Documents to
which it is a party, and the execution and delivery by the Borrower of any Notes evidencing any of
the Loans hereunder, have been duly obtained or made, and are in full force and effect.
Section 4.4
Binding Agreements
.
Each Credit Party has duly executed and delivered this Credit Agreement and each other
Fundamental Document to which it is a party. Each of this Credit Agreement and the other
Fundamental Documents constitutes the legal, valid and binding obligation of each Credit Party that
is a party thereto, enforceable against such Credit Party in accordance with its respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws
affecting creditors rights generally and subject to general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity.
Section 4.5
No Material Adverse Effect
.
Since December 31, 2005, there has been no event or circumstance that has had a Material
Adverse Effect.
Section 4.6
Financial Information
.
The audited, consolidated balance sheet of the Consolidated Group at December 31, 2005,
together with the related statements of income, stockholders equity and cash flows and the related
notes and supplemental information, in the forms which have previously been delivered to the
Lenders, have been prepared in accordance with GAAP consistently applied, except as otherwise
indicated in the notes to such financial statements. All of such financial statements fairly
present, in accordance with GAAP, the consolidated financial position and the results of
operations, as the case may be, of the Consolidated Group, at the dates or for the periods
indicated.
Section 4.7
Credit Parties
.
Attached hereto as
Schedule 4.7
is a correct and complete list as of the Closing Date,
of each Credit Party (and each Subsidiary of a Credit Party who is not otherwise a Credit Party)
showing, as to each, (i) its name, (ii) the jurisdiction in which it was incorporated or otherwise
organized, (iii) in the case of a Credit Party which is a corporation, its authorized
capitalization, the number of shares of its Capital Stock outstanding and in the case of a Credit
Party other than Ventas, the ownership of such Capital Stock, (iv) in the case of a Credit Party
which is a limited partnership, the general partners and limited partners of such Credit Party and
the ownership of its partnership interests, and (v) in the case of a Credit Party which is a
limited liability company, the members of such Credit Party and the ownership of its limited
liability company interests.
55
Section 4.8
Litigation; Judgments
.
Except for litigation for which a Credit Party has been fully indemnified and such indemnity
remains in full force and effect and has not been cancelled or terminated, there are no actions,
suits or
other proceedings at law or in equity by or before any arbitrator or arbitration panel, or any
Governmental Authority (including matters relating to environmental liability) nor, to the best of
each Credit Partys knowledge, any investigation by any Governmental Authority of the affairs of,
or threatened action, suit or other proceeding against or affecting, any Credit Party, any
Subsidiary of a Credit Party or of any of their respective properties or rights which either
(A) could reasonably be expected to have a Material Adverse Effect, or (B) relate to this Credit
Agreement, or any Loans hereunder. No Credit Party and no Subsidiary of a Credit Party is in
default, beyond any applicable cure period, with respect to any order, writ, injunction, decree,
rule or regulation of any Governmental Authority binding upon such Person, which default could
reasonably be expected to have a Material Adverse Effect.
Section 4.9
Federal Reserve Regulations
.
No Credit Party is engaged principally or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the
proceeds of the Loans will be used, directly or indirectly, whether immediately, incidentally or
ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
Section 4.10
Investment Company Act
.
No Credit Party is, or will during the term of this Credit Agreement be, an investment
company or a company controlled by an investment company, within the meaning of the Investment
Company Act of 1940.
Section 4.11
Taxes
.
Each Credit Party and each Subsidiary of a Credit Party has filed or caused to be filed all
United States federal tax returns, state income tax returns and other material tax returns which
are required to be filed with any Governmental Authority after giving effect to applicable
extensions, and has paid or has caused to be paid all taxes as shown on said returns or on any
assessment received by them, to the extent that such taxes have become due, except as permitted by
Section 6.8
hereof. No Credit Party knows of any material additional assessments which
have not been disclosed to the Administrative Agent or reserved for on Ventas financial
statements. In the reasonable, good faith opinion of the Credit Parties, the charges, accruals and
reserves on the books of the Credit Parties and their Subsidiaries in respect of taxes or other
governmental charges are adequate.
Section 4.12
Compliance with ERISA
.
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
56
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan;
and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
Section 4.13
Disclosure
.
Neither this Credit Agreement nor any other Fundamental Document nor any agreement, document,
certificate or statement furnished to the Administrative Agent, the Issuing Bank or any Lender by
or on behalf of any Credit Party in connection with the transactions contemplated hereby, at the
time it was furnished or delivered, contained any untrue statement of a material fact regarding the
Credit Parties or their Subsidiaries or, when taken together with all such other agreements,
documents, certificates and statements, omitted to state a material fact necessary under the
circumstances under which it was made in order to make the statements contained herein or therein
not misleading provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 4.14
Environmental Matters
.
Each Credit Party conducts in the ordinary course of business a review of the effect of
existing Environmental Laws and claims alleging potential liability or responsibility for violation
of any Environmental Laws on its respective business, operations and properties, and as a result
thereof the Borrower has reasonably concluded that such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.15
Compliance with Laws
.
Each Credit Party is in compliance in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its properties, except in
such instances in which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the failure to
comply therewith, either individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
Section 4.16
No Default
.
No Default or Event of Default exists under or with respect to any Fundamental Document.
Section 4.17
REIT Status
.
Ventas is qualified to be taxed as a REIT for income tax purposes under the Code.
57
Section 4.18
Solvency
.
Immediately after giving effect to the initial Extensions of Credit made on the Closing Date,
(a) the fair value of the assets of the Credit Parties, taken as a whole, will exceed their debts
and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the
property of the Credit Parties, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and mature; and (c) no
Credit Party will have unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted following the Closing
Date.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1
Conditions Precedent to the Effectiveness of this Credit Agreement
.
The effectiveness of this Credit Agreement is subject to the satisfaction in full or waiver by
the Required Lenders of the following conditions precedent:
(a)
Credit Agreement
. The Administrative Agent shall have received executed
counterparts of this Credit Agreement, which, when taken together, bear the signatures of the
Administrative Agent, the Issuing Bank, all of the Credit Parties and all of the Lenders.
(b)
Supporting Documents of the Credit Parties
. The Administrative Agent shall have
received:
(i) a copy of the Certificate of Limited Partnership of the Borrower, certified as of a
recent date by the Secretary of State (or other appropriate governmental official) of
Delaware;
(ii) a copy of the articles of incorporation or certificate of organization or
formation of each Credit Party, (x) with respect to the Borrower and Ventas, certified
within thirty (30) days by the Secretary of State (or other appropriate governmental
official) of Delaware, together with a certification by an Authorized Officer that there
have been no changes since the date of such certification by such Secretary of State (or
other appropriate governmental official) and such documents remain true, complete and in
effect as of the Closing Date, (y) with respect to Ventas Capital Corporation, Ventas LP
Realty, L.L.C., ElderTrust, Elder Trust Operating Limited Partnership, PSLT GP, LLC, PSLT
OP, L.P., PSLT-ALS Properties I, LLC, PSLT-ALS Properties Holdings, LLC, PSLT-BLC Properties
Holdings, LLC, Ventas Finance I, Inc. and Ventas Provident, LLC, certified within the past
six (6) months by the Secretary of State (or other appropriate governmental official) of the
jurisdiction of incorporation, organization or formation, together with a certification by
an Authorized Officer that there have been no changes since the date of such certification
by such Secretary of State (or other appropriate governmental official) and such documents
remain true, complete and in effect as of the Closing Date or (z) with respect to each
Guarantor (other than those identified in
clauses (x)
and
(y)
above),
certified by an Authorized Officer of each such Guarantor that such documents are true,
complete and in effect as of the Closing Date.
58
(iii) certificates of good standing or the equivalent for each Credit Party from (A)
its jurisdiction of incorporation, organization or formation and (B) any other jurisdiction
reasonably requested by the Administrative Agent.
(iv) a certificate or certificates of the Secretary or Authorized Officer of each
Credit Party, dated as of the Closing Date and certifying, respectively, (A) that attached
thereto is a true and complete copy of resolutions adopted by Ventas Board of Directors
authorizing the Borrowings by the Borrower, the Guaranty hereunder by Ventas and Guarantors
named therein and the execution, delivery and performance by the Borrower and the Guarantors
named therein in accordance with, the respective terms of this Credit Agreement, the other
Fundamental Documents to which it is or will be a party and any other documents required or
contemplated hereunder or thereunder and further certifying that such resolutions have not
been amended, rescinded or supplemented and are currently in effect, (B) that attached
thereto is a true and complete copy of resolutions adopted by the Board of Directors, Board
of Managers or Board of Trustees, as applicable, of each Guarantor (other than those
Guarantors whose resolutions are certified pursuant to
clause (A)
above), or each
entity acting on behalf of such Guarantors, as applicable, authorizing the Guaranty
hereunder by each such Guarantor to which such resolutions respectively relate and the
execution, delivery and performance by each such Guarantor in accordance with the respective
terms of this Credit Agreement, and further certifying that such resolutions have not been
amended, rescinded or supplemented and are currently in effect and (C) as to the incumbency
and specimen signature of each officer of Ventas and each other Credit Party, or each entity
acting on behalf of such Credit Party, executing this Credit Agreement, the Notes (on behalf
of the Borrower), the other Fundamental Documents or any other document delivered in
connection herewith or therewith on behalf of Ventas or on behalf of Ventas as the
Borrowers general partner on behalf of the Borrower (such certificate to contain a
certification by another officer of Ventas as to the incumbency and signature of the officer
signing the certificate referred to in this
clause (iv)
); and
(v) such additional documents relating to the Borrower, Ventas, or any other Credit
Party as the Administrative Agent or its counsel or any Lender may reasonably request.
(c)
Opinion of Counsel
. The Administrative Agent shall have received the written
opinions of (i) T. Richard Riney, internal general counsel to the Credit Parties, with respect to
the authorization, execution and delivery of the Fundamental Documents and certain other matters,
and (ii) Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP, counsel to the Credit Parties, with
respect to enforceability of this Credit Agreement and the Notes assuming that the substantive laws
of the States of Illinois and New York are identical and certain other matters, each dated as of
the Closing Date and addressed to the Administrative Agent, the Issuing Bank and the Lenders, which
opinions shall be in form and substance reasonably satisfactory to the Administrative Agent and to
Moore & Van Allen PLLC, counsel to the Administrative Agent.
(d)
Notes
. The Administrative Agent shall have received appropriate Notes in favor of
each Lender, each duly executed on behalf of the Borrower, dated the date hereof and payable to the
order of such Lender in the principal amount equal to such Lenders Revolving Commitment.
(e)
Payment of Fees and Expenses
. The Administrative Agent shall have received all
fees and other amounts due and owing pursuant to the Fee Letter, which amounts shall be
non-refundable under all circumstances. All out-of-pocket expenses incurred by the Administrative
Agent in connection with this Credit Agreement or the transactions contemplated hereby and by the
other Fundamental Documents, including all statements presented for reasonable fees and
disbursements of any financial, accounting or valuation advisors or special counsel retained by the
Administrative Agent (including, but
not limited to Moore & Van Allen PLLC, counsel to the Administrative Agent), shall have been
paid by the Borrower.
59
(f)
Borrowing Base Certificate
. The Administrative Agent shall have received a
Borrowing Base Certificate signed by an Authorized Officer of the Borrower.
(g)
Closing Certificate
. The Administrative Agent shall have received a closing
certificate signed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit 5.1(g)
, which shall, among other things, set forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with the financial
covenants contained herein as of the Closing Date on a Pro Forma Basis.
(h)
Other Documents
. The Administrative Agent and its counsel shall have received
such other documentation as the Administrative Agent or its counsel may reasonably request.
Section 5.2
Conditions Precedent to Each Loan and Each Letter of Credit
.
The obligation of the Issuing Bank to issue each Letter of Credit and of the Lenders to make
their respective Loans and if applicable, to participate in each Letter of Credit (including the
initial Loans and/or Letter of Credit) are subject to the following conditions precedent:
(a)
Notice
. The Administrative Agent shall have received a Loan Notice with respect
to such Borrowing or the Issuing Bank and the Administrative Agent shall have received a Letter of
Credit Application with respect to such Letter of Credit as required by
Section 2.2
hereof,
as applicable, duly completed and executed by an Authorized Officer of the Borrower.
(b)
Representations and Warranties
. The representations and warranties set forth in
Article IV
hereof and in the other Fundamental Documents shall be true and correct in all
material respects on and as of the date of each Borrowing or issuance of a Letter of Credit
hereunder (except to the extent that such representations and warranties expressly relate to an
earlier date) with the same effect as if made on and as of such date.
(c)
No Event of Default
. On the date of each Borrowing or issuance of a Letter of
Credit hereunder, no Default or Event of Default shall have occurred and be continuing, nor shall
any such event occur by reason of the making of the requested Loan or the issuance of the requested
Letter of Credit.
Each request for a Borrowing or issuance of a Letter of Credit hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing or issuance of a Letter
of Credit hereunder as to the matters specified in
subsections (b)
and
(c)
of this
Section 5.2
.
60
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Revolving Obligations shall have been paid in full or otherwise satisfied, and the
Commitments hereunder shall have expired or been terminated, the Borrower will, and (except in the
case of the covenants set forth in
Sections 6.1
,
6.2
and
6.3
) will cause
each of its Subsidiaries to:
Section 6.1
Financial Statements
.
Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event not later than the earlier of (i) the date five
Business Days following the date such deliveries are required by the SEC and (ii) ninety days after
the end of each fiscal year of Ventas, or such later date as may be contained in any SEC filing
extension (but in no event later than one hundred twenty (120) days after the end of such fiscal
year), the audited, consolidated balance sheet of the Consolidated Group as at the end of such
fiscal year (beginning with the fiscal year ending December 31, 2006), and the related audited,
consolidated statements of income or operations, shareholders equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of Ernst & Young or another independent registered public accounting firm of
nationally recognized standing reasonably acceptable to the Required Lenders, (it being understood
and agreed that the Administrative Agent shall not withhold its approval of any Big Four
accounting firm) and shall not unreasonably withhold its approval of any other accounting firm
which report and opinion shall be prepared in accordance with generally accepted auditing standards
relating to reporting and shall not be subject to any going concern or like qualification or
exception or any qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event not later than the earlier of (i) the date five
Business Days following the date such deliveries are required by the SEC and (ii) forty-five days
after the end of each of the first three fiscal quarters of each fiscal year of Ventas (beginning
with the fiscal quarter ending March 31, 2006), or such later date as may be contained in any SEC
Filing extension (but in no event later than sixty (60) days after the end of such fiscal quarter)
the unaudited, consolidated balance sheet of the Consolidated Group as at the end of, and the
related unaudited consolidated statements of income for, such quarter, and for the portion of the
fiscal year through the end of such quarter, and the corresponding figures as at the end of such
quarter, and for the corresponding period, in the preceding fiscal year, together with a
certificate signed by an Authorized Officer of Ventas, on behalf of Ventas, to the effect that such
financial statements, while not examined by an independent registered public accounting firm,
reflect, in the opinion of Ventas, all adjustments necessary to present fairly the financial
position of the Consolidated Group as at the end of the fiscal quarter and the results of
operations for the quarter then ended in conformity with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to
Section 6.2(e)
, the
Borrower shall not be separately required to furnish such information under
clause (a)
or
(b)
above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in
clauses (a)
and
(b)
above at the times specified therein.
Section 6.2
Certificates; Other Information
.
Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in
Sections 6.1(a)
and
(b)
, (beginning with the fiscal quarter ending March 31, 2006),
a duly completed Compliance Certificate signed by an Authorized Officer of Ventas (i) setting forth
computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance
with the financial covenants contained herein, (ii) certifying that to such officers knowledge,
after due inquiry, no Default
or Event of Default exists as of the date thereof (or the nature and extent thereof and
proposed actions with respect thereto) and (iii) including a summary of all material changes in
GAAP and in the consistent application thereof, the effect on the financial covenants resulting
therefrom, and a reconciliation between calculation of the financial covenants (and determination
of the applicable pricing level under the definition of Applicable Percentage) before and after
giving effect to such changes;
61
(b) as soon as available, but in any event simultaneously with the delivery of the statements
referred to in subsection (a) of
Section 6.1
for each fiscal year of Ventas, financial
projections on an annual basis for the coming fiscal year prepared by management Ventas for the
Consolidated Group, in form reasonably satisfactory to the Administrative Agent;
provided
that such projections shall be required no more than once per fiscal year of Ventas;
(c) simultaneously with the delivery of the statements referred to in
subsections (a)
and
(b)
of
Section 6.1
, a Borrowing Base Certificate duly completed and executed by
an Authorized Officer of Ventas;
(d) promptly after their becoming available, copies of any detailed audit reports, management
letters or recommendations submitted to the Board of Directors (or the audit committee of the Board
of Directors) of the Borrower by independent accountants in connection with the accounts or books
of the Borrower or any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements that the Borrower may
file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act
of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(f) promptly, and in any event within five Business Days after receipt thereof by any Credit
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by
such agency regarding financial or other operational results of any Credit Party or any Subsidiary
thereof; and
(g) promptly, such additional information regarding the business, financial or corporate
affairs of any Credit Party or any Subsidiary of a Credit Party, or compliance with the terms of
the Fundamental Documents, as the Administrative Agent or any Lender may from time to time
reasonably request (without requiring the Borrower to incur unreasonable costs to gather such
information).
Documents required to be delivered pursuant to
Section 6.1(a)
or
(b)
or
Section 6.2(e)
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which Ventas posts such documents, or provides a link thereto on
Ventas website on the Internet at the website address listed on
Schedule 12.2
; or (ii) on
which such documents are posted on Ventas behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent);
provided
that: (A) the Borrower
shall deliver paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the
posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (
i.e.
, soft copies) of such documents. Notwithstanding anything contained herein,
in every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by
Section 6.2(a)
to the
Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.
62
The Credit Parties hereby acknowledge that the Administrative Agent will make available to the
Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Credit
Parties hereunder (collectively, the
Credit Party Materials
) by posting the Credit Party
Materials on IntraLinks or another similar electronic system (the
Platform
) and that
certain of the Lenders may be public-side Lenders (
i.e.
, Lenders that do not wish to
receive material non-public information with respect to the Credit Parties or their securities)
(each, a
Public Lender
). The Credit Parties hereby agree that (1) all Credit Party
Materials that do not contain material non-public information with respect to the Credit Parties
that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC
(which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page
thereof); (2) by marking the Credit Party Materials PUBLIC, the Credit Parties shall be deemed to
have authorized the Administrative Agent and the Lenders to treat such Credit Party Materials as
either publicly available information or not material information (although it may be sensitive and
proprietary) with respect to the Credit Parties or their securities for purposes of United States
federal and state securities laws; (3) all Credit Party Materials marked PUBLIC are permitted to
be made available through a portion of the Platform designated as Public Investor; and (4) the
Administrative Agent shall be entitled to treat any Credit Party Materials that are not designated
PUBLIC as being suitable only for posting on a portion of the Platform not marked as Public.
The Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders shall take
reasonable steps to preserve the confidentiality of all such non-public Credit Party Materials in
accordance with the provisions of this
Section 6.2
.
Section 6.3
Notification
.
Promptly notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or would reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting practices by Ventas
or any of its Subsidiaries; and
(e) of any announcement by Moodys or S&P of any change or possible change in a Debt Rating.
Each notice pursuant to this Section shall be accompanied by a statement of an Authorized
Officer of the Borrower setting forth details of the occurrence referred to therein and stating
what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant
to
Section 6.3(a)
shall describe with particularity any and all provisions of this Credit Agreement and any
other Fundamental Document that have been breached.
63
Section 6.4
Payment of Obligations
.
Pay and discharge as the same shall become due and payable, all of its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary; (b) all lawful claims that, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness, in
each case where failure to do so would not reasonably expected to have a Material Adverse Effect.
Section 6.5
Preservation of Existence, Etc
.
(a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under applicable Laws of the jurisdiction of its organization (except in connection with a
transaction permitted by
Section 7.4
,
7.5
or
7.7
or to the extent that
failure to do so would not reasonably be expected to have a Material Adverse Effect); (b) take all
commercially reasonable action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew
all of its registered patents, trademarks, trade names and service marks, the non-preservation of
which would reasonably be expected to have a Material Adverse Effect.
Section 6.6
Maintenance of Properties
.
(a) Maintain, preserve and protect or make contractual or other provisions to maintain,
preserve or protect all of its material Property and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted, in each case except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect; (b)
make, or make contractual or other provisions to cause to be made, all necessary repairs thereto
and renewals and replacements thereof, except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
Section 6.7
Maintenance of Insurance
.
Maintain, or use reasonable efforts to cause the tenants under the leases to maintain, with
financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons or as is otherwise
permitted in the applicable leases
.
Section 6.8
Compliance with Laws
.
Comply in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except in such instances
in which (a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith would not
reasonably be expected to have a Material Adverse Effect.
64
Section 6.9
Books and Records
.
Maintain or cause to be maintained proper books of record and account, in which true and
correct entries in conformity with GAAP shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the case may be.
Section 6.10
Inspection Rights
.
Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies and abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and independent public accountants, at such reasonable times during
normal business hours and as often as may be reasonably desired for the purpose of verifying any
report delivered by the Borrower pursuant to this Credit Agreement or for otherwise ascertaining
compliance with any Fundamental Document, upon reasonable advance notice to the Borrower and
subject to the terms and provisions of any leases or other agreements regarding the properties;
provided
, however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice but subject to the terms and provisions of any leases or other agreements regarding
the properties.
Section 6.11
Use of Proceeds
.
Use the proceeds of the Extensions of Credit for general corporate purposes, including to
refinance Indebtedness and for working capital expenditures, payment of dividends, distributions,
acquisitions and development and other purposes not in contravention of any Law or of any
Fundamental Document.
Section 6.12
Withdrawal or Addition of UAP Properties
.
The Borrower may add and withdraw Properties from the pool of UAP Properties without the
consent of the Administrative Agent;
provided
that (i) in the case of addition of a
Property by a member of the Consolidated Group that is not a Credit Party, the owner of the
Property shall have provided a fully executed Joinder Agreement, together with an officers
certificate with copies of resolutions, applicable Organizational Documents, and favorable opinions
of counsel, in each case, in substantially the form and substance as previously provided at closing
of the Loan to the Administrative Agent for the other UAP Properties and the Credit Parties, and
such other information about the owner of the subject Property as is required to indicate
compliance with the requirements of and for a UAP Property, as may be reasonably requested by the
Administrative Agent and (ii) in the case of withdrawal of a Property, the Borrower shall have
given notice thereof to the Administrative Agent, together with a request to release the owner of
the subject Property, where appropriate, in accordance with the provisions hereof, and (iii) in any
such case, the Borrower shall have delivered to Administrative Agent a Borrowing Base Certificate
reflecting the addition or withdrawal of the subject Property.
In the case of withdrawal of a subject Property from the pool of UAP Properties entitling the
owner of the subject Property to a release from its Guaranty hereunder, the Administrative Agent
shall acknowledge (in writing delivered to the Borrower upon written request of the Borrower)
withdrawal of the subject Property and release of Guaranty of the owner in respect thereof
(excepting a situation where
an Event of Default shall then exist and be continuing, or where withdrawal of the subject Property
would cause the pool of UAP Properties to be insufficient to support the Loan Obligations then
outstanding, which in either such case, the owner of the subject Property shall not be released
from its Guaranty hereunder until such time as the foregoing conditions no longer exist).
65
Section 6.13
REIT Status
.
Continue to meet all requirements necessary to maintain Ventas status as a REIT.
ARTICLE VII
NEGATIVE COVENANTS
Until the Revolving Obligations shall have been paid in full or otherwise satisfied, and the
Commitments hereunder shall have expired or been terminated, the Credit Parties will not, and will
not permit any of their Subsidiaries to:
Section 7.1
Liens
.
Contract, create, incur, assume or permit to exist any Lien with respect to any UAP Property
other than Permitted Liens.
Section 7.2
Investments
.
Make or permit to exist any Investments in loans to third parties, construction land
purchases, development and Joint Ventures in the aggregate at any time in excess of 25% of
Consolidated Gross Asset Value.
Section 7.3
Indebtedness
.
Incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness under the Fundamental Documents;
(b) other Indebtedness;
provided
, that immediately after giving effect to the
incurrence or assumption thereof on a Pro Forma Basis, the Consolidated Group shall be in
compliance with the terms of this Credit Agreement, including the financial covenants
hereunder; and
(c) other Funded Debt of other members of the Consolidated Group secured by mortgage
Liens;
provided
that such Funded Debt shall be non-recourse to members of the
Consolidated Group except to the extent of the property pledged to secure such Funded Debt.
Section 7.4
Mergers and Dissolutions
.
Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as
no Default exists or would result therefrom, any Subsidiary may merge with (a) the Borrower,
provided
that the Borrower shall be the continuing or surviving Person, or (b) any one or more
Credit Parties or other Subsidiaries,
provided
that when any wholly-owned Subsidiary is
merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving
Person.
66
Section 7.5
Dispositions
.
Make any Disposition of all or any substantial part of the assets of the Borrower and its
Subsidiaries.
Section 7.6
Restricted Payments
.
Neither the Borrower nor Ventas shall make, directly or indirectly, any Restricted Payment,
except that:
(a) the Borrower may make cash dividend or distribution payments to Ventas for payment
to its shareholders, and Ventas may make such cash dividend or distribution payments to its
shareholders, of up to ninety-five percent (95%), or any such greater amount as may be
required to maintain REIT status, of the aggregate cumulative Funds From Operations from
April 1, 2002;
(b) so long as no Default or Event of Default shall have occurred and be continuing at
such time or would result therefrom after giving effect thereto on a Pro Forma Basis, the
Borrower and Ventas may declare and make dividend payments or other distributions payable
solely in the same class of partnership interests of the Borrower or Capital Stock of
Ventas, respectively;
(c) so long as no Default or Event of Default shall have occurred and be continuing at
such time or would result therefrom after giving effect thereto on a Pro Forma Basis, the
Borrower and Ventas may purchase, redeem or otherwise acquire partnership interests in the
Borrower or Capital Stock of Ventas with the proceeds from a substantially concurrent
issuance of new partnership interests or capital stock, respectively; and
(d) so long as no Default or Event of Default shall have occurred and be continuing at
such time or would result therefrom after giving effect thereto on a Pro Forma Basis, the
Borrower may make additional distributions of cash and property to Ventas for payment or
distribution to its shareholders, and Ventas may make such additional distributions of cash
and property to its shareholders, in an amount not to exceed $40 million in the aggregate
from the Closing Date.
Section 7.7
Change in Nature of Business
.
Engage in any material line of business substantially different from those lines of business
conducted by the Consolidated Group on the date hereof or any business substantially related or
incidental thereto.
Section 7.8
Transactions with Affiliates
.
Enter into any transaction of any kind with any Affiliate of the Borrower (other than a
Domestic Subsidiary), whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arms length transaction
with a Person other than an Affiliate.
67
Section 7.9
Burdensome Agreements
.
Enter into any contractual obligation (other than this Credit Agreement or any other
Fundamental Document) that limits the ability of (a) any wholly-owned Subsidiary of the Borrower
(other than a Subsidiary that is a bankruptcy remote special purpose entity) to Guarantee the
Indebtedness of the Borrower or (b) any Credit Party to create, incur, assume or suffer to exist
Liens on UAP Property;
provided
,
however
, that this clause (b) shall not prohibit
any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.3
solely to the extent any such negative pledge (i) relates to the property
financed by or the subject of such Indebtedness or (ii) only requires the grant of a Lien to secure
such Indebtedness if a Lien is granted by the Borrower or its Subsidiaries to secure other
Indebtedness of the Borrower.
Section 7.10
Financial Covenants
.
(a)
Consolidated Total Leverage Ratio
. As of the end of each fiscal quarter, permit
Consolidated Total Leverage Ratio to be greater than sixty percent (60%).
(b)
Consolidated Secured Debt Leverage Ratio
. As of the end of each fiscal quarter,
permit the Consolidated Secured Debt Leverage Ratio to be greater than thirty percent (30%).
(c)
Consolidated Unsecured Leverage Ratio
. As of the end of each fiscal quarter,
permit the Consolidated Unsecured Leverage Ratio to be greater than sixty percent (60%).
(d)
Consolidated Fixed Charge Coverage Ratio
. As of the end of each fiscal quarter,
permit the Consolidated Fixed Charge Coverage Ratio to be less than 1.75:1.0.
(e)
Consolidated Unencumbered Interest Coverage Ratio
. As of the end of each fiscal
quarter, permit the Consolidated Unencumbered Interest Coverage Ratio to be less than 2.0:1.0.
(f)
Consolidated Adjusted Net Worth
. As of the end of each fiscal quarter, permit the
Consolidated Adjusted Net Worth to be less than an amount equal to the sum of (i) $900,000,000,
plus
(ii) eighty-five percent (85%) of Net Cash Proceeds from Equity Transactions after the
Closing Date.
ARTICLE VIII
EVENTS OF DEFAULT
In the case of the happening and during the continuance of any of the following events (each,
an
Event of Default
):
(a) any representation, warranty, certification or statement made by a Credit Party in this
Credit Agreement or any other Fundamental Document to which it is a party or in any statement or
representation made by or on behalf of any Credit Party in any report, financial statement,
certificate or other document furnished to the Administrative Agent, the Issuing Bank or any Lender
pursuant to this Credit Agreement or any other Fundamental Document, shall prove to have been false
or misleading in any material respect when made or delivered;
(b) default shall be made in the payment of principal of any of the Loans as and when due and
payable, whether at the due date thereof, by reason of maturity, mandatory prepayment, acceleration
or otherwise;
68
(c) default shall be made in the payment of interest on the Loans, the Facility Fees, the
Letter of Credit Fees, the Issuing Bank Fees or other amounts payable to the Administrative Agent,
the Issuing Bank or a Lender under this Credit Agreement or any other Fundamental Document, with
respect to any Letter of Credit or under the Fee Letter, when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise and such default shall continue unremedied for three (3) Business
Days;
(d) default shall be made by any Credit Party in the due observance or performance of any
covenant, condition or agreement contained in
clauses (a)
or
(b)
of
Section
6.3
, or
Article VII
of this Credit Agreement, and such default shall continue
unremedied for five (5) Business Days;
(e) default shall be made by any Credit Party in the due observance or performance of any
other covenant, condition or agreement to be observed or performed pursuant to the terms of this
Credit Agreement or any other Fundamental Document (other than those covered by
subsections
(a)
,
(b)
,
(c)
or
(d)
of this
Article VIII
), and such default
shall continue unremedied for thirty (30) days after a Credit Party receives notice thereof from
the Administrative Agent;
(f) default shall be made by any Credit Party with respect to any payment, when due, of any
Material Indebtedness if the effect of such default is to accelerate the maturity of such Material
Indebtedness; or any other circumstance arises or event occurs (other than the mere passage of
time) by reason of which any Credit Party or any Subsidiary of a Credit Party (as applicable) is
required to repurchase or offer to the holders of Material Indebtedness of any such Person, the
opportunity to have repurchased, any such Material Indebtedness in full; or any such Material
Indebtedness shall become or be declared to be due and payable in full prior to its stated
maturity;
(g) any Credit Party or any Subsidiary of a Credit Party shall generally not pay its debts as
they become due or shall admit in writing its inability to pay its debts, or shall make a general
assignment for the benefit of creditors; or any Credit Party or any Subsidiary of a Credit Party
shall commence any case, proceeding or other action seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it a bankrupt or insolvent or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any
Debtor Relief Law or seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property or shall file an answer or other
pleading in any such case, proceeding or other action admitting the material allegations of any
petition, complaint or similar pleading filed against it or consenting to the relief sought
therein; or any Credit Party or any Subsidiary of a Credit Party shall take any action to authorize
any of the foregoing;
(h) any involuntary case, proceeding or other action against any Credit Party or any
Subsidiary of a Credit Party which Subsidiary owns any UAP Property, shall be commenced seeking to
have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it
or its debts under any Debtor Relief Law, or seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of any order for relief against it or (ii)
shall remain undismissed for a period of sixty (60) days;
provided
that in each case such
Person remains a Credit Party;
(i) final, non-appealable judgment(s) for the payment of money in excess of $25,000,000 in the
aggregate, if recourse in nature, or $50,000,000 in the aggregate, if non-recourse in nature
(excluding (i) a judgment as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing or (ii) a judgment as to which the Borrower has been
indemnified
provided
such indemnity remains in full force and effect and has not been
cancelled or terminated) shall
be rendered against any Credit Party or any Subsidiary of a Credit Party and either (A) within
thirty (30) days from the entry of such judgment, shall not have been discharged or stayed pending
appeal, or shall not have been discharged within thirty (30) days from the entry of a final order
of affirmance on appeal or (B) enforcement proceedings shall be commenced by any creditor on any
such judgment;
69
(j) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of Ventas under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$15,000,000, or Ventas or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $15,000,000;
(k) a Change in Control shall occur and shall not have been consented to by the Required
Lenders;
(l) (x) non-payment, for more than sixty (60) days past its date due, of base rent under
Material Leases; or (y) termination of Material Leases without sufficient of the relevant real
property assets, in replacement of the terminated Material Leases, being: (i) leased or managed by
Kindred, Brookdale or any other tenant or operator of any Property owned or leased by a Credit
Party as of the Closing Date; (ii) leased to or managed by another acceptable third party operator
or tenant on market terms or otherwise acceptable to the Administrative Agent; or (iii) operated by
a member of the Consolidated Group;
(m) at any time, for any reason, any Credit Party shall repudiate, or seek to repudiate, any
of its Obligations under any Fundamental Document to which it is a party;
(n) any Operative Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or satisfaction in full of all the Revolving
Obligations, ceases to be in full force and effect; or any Credit Party or any Affiliate of any
Credit Party contests in any manner the validity or enforceability of any Operative Document; or
any Credit Party denies that it has any or further liability or obligation for the payment of
principal and regular interest under any Operative Document other than by reason of satisfaction in
full of such liabilities or obligations or manifest error in any demand with respect thereto, or
purports to revoke, terminate or rescind any Operative Document; or
then, in every such event and at any time thereafter during the continuance of such event, the
Administrative Agent may, and if directed by the Required Lenders shall, take any or all of the
following actions, at the same or different times: (x) terminate forthwith the Revolving
Commitments and/or (y) declare the principal of and the interest on the Loans and the Notes
evidencing the Loans hereunder and all other amounts payable hereunder or thereunder to be
forthwith due and payable, whereupon the same shall become and be forthwith due and payable,
without presentment, demand, protest, notice of acceleration or other notice of any kind, all of
which are hereby expressly waived, anything in this Credit Agreement or in any note evidencing any
Loan hereunder to the contrary notwithstanding and/or (z) require the Borrower to deliver to the
Administrative Agent from time to time cash or Cash Equivalents in an amount equal to one hundred
percent (100%) of the amount of the LOC Obligations or to furnish other security therefor
acceptable to the Issuing Bank and the Required Lenders. If an Event of Default specified in
subsection (g)
or
(h)
above shall have occurred, the Revolving Commitments shall
automatically terminate and the principal of, and interest on, the Loans and the Notes evidencing
the Loans hereunder and all other amounts (including cash collateral for LOC Obligations) payable
hereunder and thereunder shall automatically become due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby expressly waived, anything in this
Credit Agreement or any Note evidencing any Loan hereunder to the contrary notwithstanding. Such
remedies shall be in
addition to any other remedy available to the Administrative Agent and any of the Lender pursuant
to applicable Laws or otherwise.
70
ARTICLE IX
GUARANTY
Section 9.1
The Guaranty
.
(a) Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent
and each of the holders of the Obligations, as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations (the
Guaranteed Obligations
) in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash
Collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash
Collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash
Collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) Notwithstanding any provision to the contrary contained herein, in any of the other
Fundamental Documents or other documents relating to the Obligations, the obligations of each
Guarantor under this Credit Agreement and the other Fundamental Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject to
avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law.
Section 9.2
Obligations Unconditional
.
The obligations of the Guarantors under
Section 9.1
are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Fundamental Documents or other documents relating to the Obligations, or any
substitution, compromise, release, impairment or exchange of any other guarantee of or security for
any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable Laws,
irrespective of any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of this
Section
9.2
that the obligations of the Guarantors hereunder shall be absolute and unconditional under
any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor
for amounts paid under this
Article IX
until such time as the Obligations have been
irrevocably paid in full and the Commitments relating thereto have expired or been terminated.
Without limiting the generality of the foregoing, it is agreed that, to the fullest extent
permitted by law, the occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and unconditional as described
above:
(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
71
(b) any of the acts mentioned in any of the provisions of any of the Fundamental
Documents, or other documents relating to the Guaranteed Obligations or any other agreement
or instrument referred to therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended in any respect, or any right
under any of the Fundamental Documents or other documents relating to the Guaranteed
Obligations, or any other agreement or instrument referred to therein shall be waived or any
other guarantee of any of the Guaranteed Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent or any of the holders
of the Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail
to attach or be perfected; or
(e) any of the Guaranteed Obligations shall be determined to be void or voidable
(including for the benefit of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest notice of acceptance of the guaranty given hereby and of
extensions of credit that may constitute Guaranteed Obligations, notices of amendments, waivers and
supplements to the Fundamental Documents and other documents relating to the Guaranteed
Obligations, or the compromise, release or exchange of collateral or security, and all notices
whatsoever, and any requirement that the Administrative Agent or any holder of the Guaranteed
Obligations exhaust any right, power or remedy or proceed against any Person under any of the
Fundamental Documents or any other documents relating to the Guaranteed Obligations or any other
agreement or instrument referred to therein, or against any other Person under any other guarantee
of, or security for, any of the Obligations.
Section 9.3
Reinstatement
.
Neither the Guarantors obligations hereunder nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower, by reason of the Borrowers
bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion
of the Guaranteed Obligations. The obligations of the Guarantors under this
Article IX
shall be automatically reinstated if and to the extent that for any reason any payment by or on
behalf of any Person in respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any proceedings pursuant
to any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each holder of Guaranteed Obligations on demand for all reasonable costs
and expenses (including all reasonable fees, expenses and disbursements of any law firm or other
counsel) incurred by the Administrative Agent or such holder of Guaranteed Obligations in
connection with such rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any Debtor Relief Law.
72
Section 9.4
Certain Waivers
.
Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced
without the necessity of resorting to or otherwise exhausting remedies in respect of any other
security or collateral interests, and without the necessity at any time of having to take recourse
against the Borrower
hereunder or against any collateral securing the Guaranteed Obligations or otherwise, (b) it
will not assert any right to require the action first be taken against the Borrower or any other
Person (including any co-guarantor) or pursuit of any other remedy or enforcement any other right
and (c) nothing contained herein shall prevent or limit action being taken against the Borrower
hereunder, under the other Fundamental Documents or the other documents and agreements relating to
the Guaranteed Obligations or from foreclosing on any security or collateral interests relating
hereto or thereto, or from exercising any other rights or remedies available in respect thereof, if
neither the Borrower nor the Guarantors shall timely perform their obligations, and the exercise of
any such rights and completion of any such foreclosure proceedings shall not constitute a discharge
of the Guarantors obligations hereunder unless as a result thereof, the Guaranteed Obligations
shall have been paid in full and the Commitments relating thereto shall have expired or been
terminated, it being the purpose and intent that the Guarantors obligations hereunder be absolute,
irrevocable, independent and unconditional under all circumstances.
Section 9.5
Remedies
.
The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the holders of the Guaranteed Obligations, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided
in
Article VIII
(and shall be deemed to have become automatically due and payable in the
circumstances provided in
Article VIII
) for purposes of
Section 9.1
,
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Guaranteed Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed
to have become automatically due and payable), the Guaranteed Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes
of
Section 9.1
.
Section 9.6
Rights of Contribution
.
The Guarantors hereby agree as among themselves that, in connection with payments made
hereunder, each Guarantor shall have a right of contribution from each other Guarantor in
accordance with applicable Laws. Such contribution rights shall be subordinate and subject in
right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have
been irrevocably paid in full and the Commitments relating thereto shall have expired or been
terminated, and none of the Guarantors shall exercise any such contribution rights until the
Guaranteed Obligations have been irrevocably paid in full and the Commitments relating thereto
shall have expired or been terminated.
Section 9.7
Guaranty of Payment; Continuing Guaranty
.
The guarantee in this
Article IX
is a guaranty of payment and not of collection, and
is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.
73
ARTICLE X
CASH COLLATERAL
Section 10.1
Cash Collateral Account
.
There shall be established with the Administrative Agent an account (the
Cash Collateral
Account
) in the name of the Administrative Agent (for the benefit of the Administrative Agent,
the Issuing Bank, the Lenders and the Hedging Banks), into which the Borrower may from time to time
deposit Dollars pursuant to, and in accordance with,
Section 2.7(f)
hereof. Bank of
America, in its capacity as the bank (within the meaning of Section 9-102 of the UCC) with respect
to the Cash Collateral Account (the
Cash Collateral Bank
), hereby agrees to comply with
all orders and instructions of the Administrative Agent with regard to the Cash Collateral Account
without the consent of any Credit Party. The documentation for and terms of the Cash Collateral
Account shall be in form and substance satisfactory to the Administrative Agent.
Section 10.2
Investment of Funds
.
(a) The Administrative Agent is hereby authorized and directed to invest and reinvest the
funds from time to time deposited into the Cash Collateral Account, so long as no Event of Default
has occurred and is continuing, on the instructions of the Borrower (provided that any such
instructions given verbally shall be confirmed promptly in writing) or, if the Borrower shall fail
to give such instructions upon delivery of any such funds, in the sole discretion of the
Administrative Agent,
provided
that in no event may the Borrower give instructions to the
Administrative Agent to, or may the Administrative Agent in its discretion, invest or reinvest
funds in the Cash Collateral Account other than in Dollars or Cash Equivalents.
(b) Any net income or gain on the investment of funds from time to time held in the Cash
Collateral Account, shall be promptly reinvested by the Administrative Agent as a part of the Cash
Collateral Account, and any net loss on any such investment shall be charged against the Cash
Collateral Account.
(c) Neither of the Administrative Agent nor any of the Lenders shall be a trustee for any of
the Credit Parties, or shall have any obligations or responsibilities, or shall be liable for
anything done or not done, in connection with the Cash Collateral Account, except as expressly
provided herein. Neither of the Administrative Agent nor any of the Lenders shall have any
obligation or responsibility or shall be liable in any way for any investment decision made in
accordance with this
Section 10.2
or for any decrease in the value of the investments held
in the Cash Collateral Account.
Section 10.3
Remedies
.
At any time upon the occurrence and during the continuation of an Event of Default, the
Administrative Agent may sell any documents, instruments and securities held in the Cash Collateral
Account and may immediately apply the proceeds thereof and any other cash held in the Cash
Collateral Account in accordance with
Section 2.4(f)
.
74
ARTICLE XI
ADMINISTRATIVE AGENT
Section 11.1
Appointment and Authorization of Administrative Agent
.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Credit Agreement and each
other Fundamental Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any other Fundamental Document, together
with such powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Fundamental Document, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have
or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any other Fundamental Document or otherwise exist against the Administrative
Agent. Without limiting the generality of the foregoing sentence, the use of the term agent
herein and in the other Fundamental Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Laws. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
Article XI
with
respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and agreements for letters
of credit pertaining to such Letters of Credit as fully as if the term Administrative Agent as
used in this
Article XI
and in the definition of Agent Parties included the Issuing Bank
with respect to such acts or omissions, and (ii) as additionally provided herein with respect to
the Issuing Bank.
Section 11.2
Delegation of Duties
.
The Administrative Agent may execute any of its duties under this Credit Agreement or any
other Fundamental Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
Section 11.3
Exculpatory Provisions
.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Fundamental Documents. Without limiting the generality of the
foregoing, the Administrative Agent shall not:
(a) be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other
Fundamental Documents that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of the Lenders as shall
be expressly provided for herein or in the other Fundamental Documents),
provided
that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Fundamental Document or applicable Laws; and
(c) except as expressly set forth herein and in the other Fundamental Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Affiliates that is communicated to or obtained by the
Persons serving as the Administrative Agent or any of its Affiliates in any capacity.
75
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as
shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in
Article VIII
and
Section 12.1
) or
(ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have any knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the Issuing Bank.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Credit
Agreement or any other Fundamental Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Credit Agreement, any other Fundamental Document or any other
agreement, instrument or document or (v) the satisfaction of any condition set forth in
Article
V
or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 11.4
Reliance by Administrative Agent
.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing Bank unless the Administrative Agent shall
have received notice to the contrary from such Lender or the Issuing Bank prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and, in the absence of its own gross negligence or willful misconduct as determined
by a court of competent jurisdiction in a final and non-appealable judgment, shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
Section 11.5
Notice of Default
.
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender or the Borrower
referring to this Credit Agreement, describing such Default or Event of Default and stating that
such notice is a notice of default. The Administrative Agent shall take such action with respect
to such Default or Event of Default as may be directed by the Required Lenders in accordance
herewith;
provided
, however, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Lenders.
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Section 11.6
Credit Decision; Disclosure of Information by Administrative Agent
.
Each Lender acknowledges that no Agent Party has made any representation or warranty to it,
and that no act by the Administrative Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Credit Party or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any Agent Party to any Lender as to
any matter, including whether Agent Parties have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent Party and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit Parties and their
respective Subsidiaries, and all applicable bank or other regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this Credit Agreement and
to extend credit to the Borrower and the other Credit Parties hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent Party and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Credit Agreement and
the other Fundamental Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates that may come into the possession of any Agent Party.
Section 11.7
Administrative Agent in its Individual Capacity
.
Bank of America and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with each of the Credit Parties and their
respective Affiliates as though Bank of America were not the Administrative Agent, the Swingline
Lender or the Issuing Bank hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Credit Party or its Affiliates (including information that may be subject
to confidentiality obligations in favor of such Credit Party or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such information to them.
With respect to its Loans, Bank of America shall have the same rights and powers under this Credit
Agreement as any other Lender and may exercise such rights and powers as though it were not the
Administrative Agent, the Swingline Lender or the Issuing Bank, and the terms Lender and
Lenders include Bank of America in its individual capacity.
Section 11.8
Successor Administrative Agent
.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the Swingline Lender, the Issuing Bank and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders, the Swingline Lender and the Issuing Bank,
appoint a successor Administrative Agent meeting the qualifications set forth above;
provided
that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (i) the retiring Administrative Agent shall be
discharged from
77
its duties and obligations hereunder and under the other Fundamental Documents
(except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the Issuing Bank under any of the Fundamental Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (ii) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender, the
Swingline Lender and the Issuing Bank directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this
Section 11.8
. Upon the
acceptance of a successors appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Fundamental Documents (if not
already discharged therefrom as provided above in this
Section 11.8
) from and after the
effective date of such resignation. The resigning Administrative Agent will refund to the Borrower
a ratable portion of the annual fee for the period beyond the effective date of resignation. The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring Administrative Agents resignation hereunder and under the other Fundamental Documents,
the provisions of this Article and
Section 12.4
shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
(b) Any resignation by Bank of America as Administrative Agent pursuant to this
Section
11.8
shall also constitute its resignation as Issuing Bank and Swingline Lender. Upon the
acceptance of a successors appointment as Administrative Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank and Swingline Lender, (ii) the retiring Issuing Bank and Swingline Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other
Fundamental Documents, and (iii) the successor Issuing Bank shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of Credit.
No resignation described in this
Section 11.8
shall waive or release any rights or
remedies available to the Borrower for any obligations of such retiring party under this Credit
Agreement or any Fundamental Document while such party served as the Administrative Agent, the
Issuing Bank or the Swingline Lender, as applicable.
If, at any time, the Administrative Agent, the Issuing Bank or the Swingline Lender ceases to
be a Lender, then at any time no Default or Event of Default shall then exist, at the option of the
Borrower (said option to be exercised by written notice thereof from the Borrower given to such
Administrative Agent, Issuing Bank and/or Swingline Lender), such Administrative Agent, Issuing
Bank and/or Swingline Lender (as applicable) shall promptly resign following receipt of any such
notice.
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Section 11.9
Administrative Agent May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or LOC
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, LOC Obligations and all other Obligations (other than
obligations under Hedging Agreements to which the Administrative Agent is not a party) that
are owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the Issuing Bank and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders, the Issuing Bank and the Administrative
Agent under
Sections 3.5
and
12.4
) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the Issuing Bank to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the Issuing Bank, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under
Sections 3.5
and
12.4
.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
Section 11.10
Collateral and Guaranty Matters
.
The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release any Guarantor from its obligations under the Guaranty if such Person ceases
to be required to be a Guarantor as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the authority of Administrative Agent to release any Guarantor from its obligations
hereunder pursuant to this
Section 11.10
.
Section 11.11
Other Agents; Arrangers and Managers
.
None of the Lenders or other Persons identified on the facing page or signature pages of this
Credit Agreement as a Co-Syndication Agent, Co-Documentation Agent, Managing Agent, Joint
Lead Arranger or Joint Book Manager shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than, in the case of such Lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other
Persons so identified in deciding to enter into this Credit Agreement or in taking or not taking
action hereunder.
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ARTICLE XII
MISCELLANEOUS
Section 12.1
Amendments, Etc.
No amendment or waiver of, or any consent to deviation from, any provision of this Credit
Agreement or any other Fundamental Document shall be effective unless in writing and signed by the
Borrower or the applicable Credit Party, as the case may be, and the Administrative Agent or the
Required Lenders, as the case may be, and acknowledged by the Administrative Agent, and each such
amendment, waiver or consent shall be effective only in the specific instance and for the specific
purpose for which it is given;
provided
, however, that:
(a) unless also consented to in writing by each Lender directly affected thereby, no
such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to
Article VIII
), it being understood that
the amendment or waiver of an Event of Default or a mandatory reduction or a
mandatory prepayment in Commitments shall not be considered an increase in
Commitments,
(ii) waive non-payment or postpone any date fixed by this Credit Agreement or
any other Fundamental Document for any payment of principal, interest, fees or other
amounts due to any Lender hereunder or under any other Fundamental Document,
(iii) reduce the principal of, or the rate of interest specified herein on, any
Loan or LOC Borrowing, or (subject to
clause (v)
of the last proviso of this
Section 12.1
) any fees or other amounts payable hereunder or under any other
Fundamental Document;
provided
, however, that only the consent of the
Required Lenders shall be necessary (A) to amend the additional rates of interest
charged during the continuance of an Event of Default as set forth in
Section
2.8(a)
or to waive any obligation of the Borrower to pay such additional rates
of interest (including with respect to LOC Borrowings) or (B) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or LOC Borrowing or to
reduce any fee payable hereunder,
(iv) change any provision of this Credit Agreement regarding
pro
rata
sharing or
pro rata
funding with respect to (A) the making of
advances (including participations), (B) the manner of application of payments or
prepayments of principal, interest, or fees, (C) the manner of application of
reimbursement obligations from drawings under Letters of Credit, or (D) the manner
of reduction of commitments and committed amounts,
(v) change any provision of this
Section 12.1(a)
or the definition of
Required Lenders or any other provision hereof specifying the number or percentage
of Lenders required to amend, waive or otherwise modify any rights hereunder or make
any determination or grant any consent hereunder, or
(vi) release all or substantially all of the Guarantors from their obligations
under the Fundamental Documents (other than as provided herein or as appropriate in
connection with transactions permitted hereunder); or
80
(b) unless also consented to in writing by the Issuing Bank, no such amendment, waiver
or consent shall affect the rights or duties of the Issuing Bank under this Credit Agreement
or any LOC Documents relating to any Letter of Credit issued or to be issued by it;
(c) unless also consented to in writing by the Swingline Lender, no such amendment,
waiver or consent shall affect the rights or duties of the Swingline Lender under this
Credit Agreement; and
(d) unless also consented to in writing by the Administrative Agent, no such amendment,
waiver or consent shall affect the rights or duties of the Administrative Agent under this
Credit Agreement or any other Fundamental Document; and
provided
however, that notwithstanding anything to the contrary contained herein, (i) no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender, (ii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy or insolvency reorganization plan that affects the Loans, (iii) each Lender acknowledged
that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein, (iv) the Required Lenders may consent to allow a Credit Party to use
Cash Collateral in the context of a bankruptcy or insolvency proceeding, and (v) the Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto.
Section 12.2
Notices; Effectiveness; Electronic Communication
.
(a)
Notices Generally
. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on
Schedule 12.2
; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received. Notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b)
below, shall be effective as provided in such
subsection (b)
.
(b)
Electronic Communications
. Notices and other communications to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent,
provided
that the foregoing shall not apply to notices to any Lender or the Issuing
Bank pursuant to
Article II
if such Lender or the Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided
that
approval of such procedures may be limited to particular notices or communications.
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement),
provided
that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing
clause (i)
of notification that such notice or communication is
available and identifying the website address therefor.
(c)
The Platform
. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT
PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE CREDIT PARTY MATERIALS OR THE ADEQUACY
OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE CREDIT PARTY
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
CREDIT PARTY MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the
Agent Parties
) have any liability to the Borrower or
any other Credit Party, any Lender, the Issuing Bank or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out
of the Borrowers or any other Credit Partys or the Administrative Agents transmission of Credit
Party Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Agent Party;
provided
,
however
, that in no event shall any Agent Party have any
liability to the Borrower or any other Credit Party, any Lender, the Issuing Bank or any other
Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct
or actual damages).
(d)
Change of Address, Etc
. Each of the Borrower, the Administrative Agent, the
Issuing Bank and the Swingline Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address telecopier number or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative Agent, the Issuing Bank and
the Swingline Lender.
(e)
Reliance by Administrative Agent, Issuing Bank and Lenders
. The Administrative
Agent, the Issuing Bank and the Lenders shall be entitled to rely and act upon any notices
(including telephonic notices with respect to Extensions of Credit) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the Issuing Bank, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
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Section 12.3
No Waiver; Cumulative Remedies
.
No failure by any Lender, the Issuing Bank, the Swingline Lender or the Administrative Agent
to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.
Section 12.4
Expenses; Indemnity; Damage Waiver
.
(a)
Costs and Expenses
. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Credit Agreement and the other Fundamental Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the Issuing Bank
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Bank), in connection with the enforcement or protection of its rights (A) in
connection with this Credit Agreement and the other Fundamental Documents, including its rights
under this
Section 12.4
, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)
Indemnification by the Borrower
. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of any
of the foregoing Persons (each such Person being called an
Indemnitee
) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and
related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower
or any other Credit Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Credit Agreement, any other Fundamental Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Credit Agreement and the other Fundamental Documents, (ii)
any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party thereto;
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such
Indemnitee or (y) in any litigation in which the Indemnified Party and one or more Credit
Parties are adverse to each other, and in which the Credit Parties prevail on their claims and the
Indemnitee does not prevail on its defenses or its counterclaims interposed in such litigation or
result from a claim brought by the Borrower or any other Credit Party against an Indemnitee for
breach in bad faith of such Indemnitees obligations hereunder or under any other Fundamental
Document, if the Borrower or such Credit Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.
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(c)
Reimbursement by Lenders
. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under
subsection (a)
or
(b)
of this
Section 12.4
to be paid by it to the Administrative Agent (or any sub-agent thereof), an
Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the Issuing Bank or such Related Party, as the
case may be, such Lenders Revolving Commitment Percentage (determined in each case as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) or an Issuing Bank in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent) or an Issuing Bank
in connection with such capacity. The obligations of the Lenders under this
subsection (c)
are subject to the provisions of
Section 2.10(d)
.
(d)
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by
applicable Laws, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Credit Agreement or any other Fundamental Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in
subsection (b)
above shall be liable
for any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Credit Agreement or the other
Fundamental Documents or the transactions contemplated hereby or thereby other than for direct or
actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e)
Payments
. All amounts due under this
Section 12.4
shall be payable not
later than ten (10) Business Days after demand therefor.
(f)
Survival
. The agreements in this
Section 12.4
shall survive the
resignation of the Administrative Agent and the Issuing Bank, the replacement of any Lender, the
termination of the Revolving Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
Section 12.5
Payments Set Aside
.
To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent, an Issuing Bank or any Lender, or the Administrative Agent, an Issuing Bank or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, an Issuing Bank or
such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender
and the Issuing Bank severally agrees to pay to the Administrative Agent on demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus
interest thereon from the date of such demand to the date such payment is made at a
rate per annum equal to the Federal Funds Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the Issuing Bank under
clause (b)
of the preceding sentence shall survive the payment in full of the Obligations
and the termination of this Credit Agreement.
84
Section 12.6
Successors and Assigns
.
(a)
Successors and Assigns Generally
. The provisions of this Credit Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrower nor any other
Credit Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of
subsection (b)
of this Section, (ii)
by way of participation in accordance with the provisions of
subsection (d)
of this
Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of
subsection (f)
of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants to the extent
provided in
subsection (d)
of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Credit
Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Credit Agreement
(including all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b)
, participations in LOC Obligations and in Swingline Loans) at the
time owing to it);
provided
that any such assignment shall be subject to the
following conditions:
(i)
Minimum Amounts
.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenders Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in
subsection (b)(i)(A)
of this
Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if Trade Date is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed);
provided
,
however
, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee Group) will
be treated as a single assignment for purposes of determining whether such
minimum amount has been met.
85
(ii)
Proportionate Amounts
. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lenders rights and
obligations under this Credit Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swingline Lenders
rights and obligations in respect of Swingline Loans;
(iii)
Required Consents
. No consent shall be required for any
assignment except to the extent required by
subsection (b)(i)(B)
of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to
a Person that is not a Lender, an Affiliate of such Lender or an Approved
Fund with respect to such Lender;
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under
one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swingline Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment.
(iv)
Assignment and Assumption
. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount, if any, required as
set forth in
Schedule 12.6
;
provided
,
however
, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)
No Assignment to the Borrower
. No such assignment shall be made to the
Borrower or any of the Borrowers Affiliates or Subsidiaries.
(vi)
No Assignment to Natural Persons
. No such assignment shall be made to
a natural person or anyone other than an Eligible Assignee.
86
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c)
of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Credit Agreement
and, to the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Credit Agreement, and the assigning Lender
thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its obligations
under this Credit Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lenders rights and obligations under this Credit Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 3.1
,
3.4
,
3.5
, and
12.4
with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Credit Agreement that
does not comply with this subsection shall be treated for purposes of this Credit Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance
with
subsection (d)
of this Section.
(c)
Register
. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agents Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and
LOC Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
Register
). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any Person who
is an Eligible Assignee (other than a natural person or the Borrower or any of the
Borrowers Affiliates or Subsidiaries) (each, a
Participant
) in all or a portion
of such Lenders rights and/or obligations under this Credit Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lenders participations in LOC
Obligations and/or Swingline Loans) owing to it);
provided
that (i) such Lenders
obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the Issuing
Bank shall continue to deal solely and directly with such Lender in connection with such
Lenders rights and obligations under this Credit Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit Agreement;
provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to
Section 12.1
that affects such Participant.
Subject to
subsection (e)
of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of
Sections 3.1
,
3.4
and
3.5
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to
subsection (b)
of this Section. To the extent permitted by
Law, each Participant also shall be entitled to the benefits of
Section 12.8
as
though it were a Lender,
provided
such Participant agrees to be subject to
Section 2.14
as though it were a Lender.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled
to receive any greater payment under
Section 3.1
or
3.4
than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the
Borrowers prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of
Section
3.1
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section
3.1(e)
as though it were a Lender.
87
(f)
Certain Pledges
. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit Agreement (including under
its Note(s), if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank;
provided
that no such
pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g)
Electronic Execution of Assignments
. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h)
Resignation as Issuing Bank or Swingline Lender after Assignment
.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America
may, (i) upon thirty (30) days notice to the Borrower and the Lenders, resign as Issuing
Bank and/or (ii) upon thirty (30) days notice to the Borrower, resign as Swingline Lender.
In the event of any such resignation as Issuing Bank or Swingline Lender, the Borrower shall
be entitled to appoint from among the Lenders a successor Issuing Bank or Swingline Lender
hereunder;
provided
,
however
, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as Issuing Bank or Swingline
Lender, as the case may be. If Bank of America resigns as Issuing Bank, it shall retain all
the rights, powers, privileges and duties of the Issuing Bank hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank
and all LOC Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.12(c)
). If Bank of America resigns as Swingline Lender, it shall retain
all the rights of the Swingline Lender provided for hereunder with respect to Swingline
Loans made by it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swingline Loans pursuant to
Section 2.13
. Upon the appointment of a
successor Issuing Bank and/or Swingline Lender, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Issuing
Bank or Swingline Lender, as the case may be, and (b) the successor Issuing Bank shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time
of such succession or make other arrangements satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters of Credit.
88
Section 12.7
Confidentiality
.
Each of the Administrative Agent, the Lenders and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates respective partners, directors, officers,
employees, agents, including accountants, legal counsel and other advisors and representatives (it
being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential;
provided
that any independent
contractors of the Administrative Agent and the Lenders shall have agreed to be bound by this
Section 12.7
), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it or any of its Affiliates (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Fundamental Document or
any action or proceeding relating to this Credit Agreement or any other Fundamental Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this
Section 12.7
, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Credit Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this
Section 12.7
or (y) becomes available to the Administrative
Agent, any Lender, the Issuing Bank or any of their respective Affiliates on a nonconfidential
basis from a source other than any Credit Party or other Subsidiary.
For purposes of this
Section 12.7
, Information means all information received from
any Credit Party or other Subsidiary relating to any Credit Party or other Subsidiary or any of
their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to disclosure
by such Credit Party or other Subsidiary. Any Person required to maintain the confidentiality of
Information as provided in this
Section 12.7
shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.
Each of the Administrative Agent, the Lenders and the Issuing Bank acknowledges that (a) the
Information may include material non-public information concerning the Credit Party or other
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Laws, including federal and state securities laws.
Section 12.8
Set-off
.
In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender and each of its Affiliates are
authorized at any time and from time to time, without prior notice to the Borrower or any other
Credit Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each
Credit Party) to the fullest extent permitted by Law (except as otherwise provided in
Section
2.14(a)
), to set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender
or Affiliate to or for the credit or the account of the respective Credit Parties against any and
all Obligations owing to such Lender hereunder or under any other Fundamental Document, now or
hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Credit Agreement or any other Fundamental Document and although such
Obligations may be contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided
,
however, that the failure to give such notice shall not affect the validity of such set-off and
application.
89
Section 12.9
Interest Rate Limitation
.
Notwithstanding anything to the contrary contained in any Fundamental Document, the interest
paid or agreed to be paid under the Fundamental Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Laws (the
Maximum Rate
). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Laws, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.
Section 12.10
Counterparts; Effectiveness
.
This Credit Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument. Except
as provided in
Section 5.1
, this Credit Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties
hereto. Delivery of an executed counterpart of a signature page of this Credit Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of this Credit
Agreement.
Section 12.11
Integration
.
This Credit Agreement, together with the other Fundamental Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all
prior agreements, written or oral, on such subject matter. In the event of any conflict between
the provisions of this Credit Agreement and those of any other Fundamental Document, the provisions
of this Credit Agreement shall control;
provided
that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other Fundamental Document
shall not be deemed a conflict with this Credit Agreement. Each Fundamental Document was drafted
with the joint participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair meaning thereof.
Section 12.12
Survival of Representations and Warranties
.
All representations and warranties made hereunder and in any other Fundamental Document or
other document delivered pursuant hereto or thereto or in connection herewith or therewith shall
survive the execution and delivery hereof and thereof. Such representations and warranties have
been or will be relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Default or
Event of Default at the time of any Extension of Credit, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or
any Letter of Credit shall remain outstanding.
90
Section 12.13
Severability
.
If any provision of this Credit Agreement or the other Fundamental Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of
this Credit Agreement and the other Fundamental Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 12.14
Replacement of Lenders
.
If any Lender requests compensation under
Section 3.4
, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to
Section 3.1
, or if any Lender is a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by,
Section 12.6
), all of its interests,
rights and obligations under this Credit Agreement and the related Fundamental Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment),
provided
that:
(a) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and its funded participations in LOC Borrowings, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other
Fundamental Documents (including any amounts under
Section 3.5
) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts);
(b) in the case of any such assignment resulting from a claim for compensation under
Section 3.4
or payments required to be made pursuant to
Section 3.1
, such
assignment will result in a reduction in such compensation or payments thereafter; and
(c) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
Section 12.15
Affirmation
.
Promptly after the Closing Date, the Administrative Agent will use all reasonable efforts to
(a) cause to be cancelled and returned to the Borrower all promissory notes and (b) cause
recordable release of all mortgages and other lien, to be recorded and delivered to the Borrower,
delivered under or in connection with the Prior Credit Agreement.
91
Section 12.16
No Advisory or Fiduciary Responsibility
.
In connection with all aspects of each transaction contemplated hereby, each Borrower and each
other Credit Party acknowledges and agrees, and acknowledges its Affiliates understanding, that:
(i) the credit facility provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or other modification
hereof or of any other Fundamental Document) are an arms-length commercial transaction between the
Borrower, the other Credit Parties and their respective Affiliates, on the one hand, and the
Administrative Agent and the Joint Lead Arrangers, on the other hand, and the Borrower and the
other Credit Parties are capable of evaluating and understanding and understand and accept the
terms, risks and conditions of the
transactions contemplated hereby and by the other Fundamental Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent and each of the Joint Lead Arrangers is and has been
acting solely as a principal and is not the financial advisor, agent or fiduciary, for any of the
Borrower, any other Credit Parties or any of their respective Affiliates, stockholders, creditors
or employees or any other Person; (iii) neither the Administrative Agent nor either of the Joint
Lead Arrangers has assumed or will assume an advisory, agency or fiduciary responsibility in favor
of any Borrower or any other Credit Party with respect to any of the transactions contemplated
hereby or the process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Fundamental Document (irrespective of whether the
Administrative Agent or either of the Joint Lead Arrangers has advised or is currently advising any
of the Borrower
,
the other Credit Parties or their respective Affiliates on other matters) and
neither the Administrative Agent nor either of the Joint Lead Arrangers has any obligation to any
of the Borrower, the other Credit Parties or their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Fundamental Documents; (iv) the Administrative Agent, the Joint Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower
,
the other Credit Parties and their respective Affiliates, and
neither the Administrative Agent nor either of the Joint Lead Arrangers has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Administrative Agent and the Joint Lead Arrangers have not provided and will not provide any
legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any other Fundamental
Document) and the Borrower and each other Credit Party has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate. The Borrower and each other
Credit Party hereby waives and releases, to the fullest extent permitted by law, any claims that it
may have against the Administrative Agent and the Joint Lead Arrangers with respect to any breach
or alleged breach of agency or fiduciary duty.
Section 12.17
Patriot Act; Anti-Money Laundering
.
Each Lender and the Administrative Agent (for itself and not on behalf of any other party)
hereby notifies the Borrower that, pursuant to the requirements of the USA Patriot Act, Title III
of Pub. L. 107-56, signed into law October 26, 2001 (the
Patriot Act
), it is required to
obtain, verify and record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.
Promptly following a request by the Administrative Agent or any Lender, the Credit Parties shall
provide or cause to be provided all documentation and other information that the Administrative
Agent or such Lender reasonably requests in order to comply with its ongoing obligations under
applicable know your customer and anti-money laundering rules and regulations, including the
Patriot Act.
Section 12.18
GOVERNING LAW
.
(a) THIS CREDIT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED
THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
92
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT AGREEMENT OR ANY OTHER
FUNDAMENTAL DOCUMENT MAY BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF NEW
YORK, AND BY
EXECUTION AND DELIVERY OF THIS CREDIT AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY FUNDAMENTAL DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, THAT MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
Section 12.19
WAIVER OF RIGHT TO TRIAL BY JURY
.
EACH PARTY TO THIS CREDIT AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY FUNDAMENTAL DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY FUNDAMENTAL DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS
SECTION 12.19
WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
93
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed
as of the day and the year first written.
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BORROWER:
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VENTAS REALTY, LIMITED PARTNERSHIP
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By: Ventas, Inc., its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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GUARANTORS:
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VENTAS, INC.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS CAPITAL CORPORATION
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS LP REALTY, L.L.C.
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By: Ventas, Inc., its Sole Member
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS TRS, LLC
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By: Ventas Realty, Limited Partnership, its
Sole Member
By: Ventas, Inc., its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
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VENTAS HEALTHCARE PROPERTIES, INC.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS MANAGEMENT, LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS FRAMINGHAM, LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS SUN LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS CAL SUN LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS PROVIDENT, LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President, General Counsel and
Corporate Secretary
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VENTAS FINANCE I, INC.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President and Secretary
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VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
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VENTAS SPECIALTY I, INC.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President and Secretary
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VENTAS SPECIALTY I, LLC
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Executive Vice President and Secretary
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ELDERTRUST
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ELDER TRUST OPERATING LIMITED PARTNERSHIP
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By: ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET CAPITAL CORP.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Secretary
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ET SUB-BERKSHIRE LIMITED PARTNERSHIP
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By: ET Berkshire, LLC, its General
Partner
By: ElderTrust Operating Limited
Partnership, its Sole Member
By: ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
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ET BERKSHIRE, LLC
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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CABOT ALF, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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CLEVELAND ALF, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-HERITAGE WOODS, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-HIGHGATE, L.P.
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By:
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ET GENPAR, L.L.C., its General Partner
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
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ET GENPAR, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-LACEY I, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-LEHIGH LIMITED PARTNERSHIP
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By:
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ET Lehigh, LLC, its General Partner
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET LEHIGH, LLC
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-LOPATCONG, L.L.C.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Secretary
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VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
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ET SUB-PENNSBURG MANOR LIMITED PARTNERSHIP, L.L.P.
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By:
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ET Pennsburg Finance, L.L.C., its
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General Partner
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By:
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/s/ T. Richard Riney
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Name:
|
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T. Richard Riney
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Title:
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Secretary
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ET PENNSBURG FINANCE, L.L.C.
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By:
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/s/ T. Richard Riney
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Name:
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T. Richard Riney
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Title:
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Secretary
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ET SUB-PHILLIPSBURG I, L.L.C.
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By:
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ElderTrust Operating Limited
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
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By:
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/s/ T. Richard Riney
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Name:
|
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T. Richard Riney
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Title:
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Trustee and Secretary
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ET SUB-PLEASANT VIEW, L.L.C.
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By:
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/s/ T. Richard Riney
|
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|
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Name:
|
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T. Richard Riney
|
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|
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Title:
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Secretary
|
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|
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ET SUB-RITTENHOUSE LIMITED PARTNERSHIP, L.L.P.
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By:
|
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ET GENPAR, L.L.C., its General Partner
|
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|
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By:
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ElderTrust Operating Limited
|
|
|
|
|
|
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|
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Partnership, its Sole Member
|
|
|
|
|
|
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By:
|
|
ElderTrust, its General Partner
|
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|
|
|
|
|
|
|
|
|
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By:
|
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/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
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Title:
|
|
Trustee and Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
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|
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ET SUB-RIVERVIEW RIDGE LIMITED PARTNERSHIP, L.L.P.
|
|
|
|
|
|
|
|
|
|
|
|
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|
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By:
|
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ET GENPAR, L.L.C., its General Partner
|
|
|
|
|
|
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By:
|
|
ElderTrust Operating Limited
|
|
|
|
|
|
|
|
|
Partnership, its Sole Member
|
|
|
|
|
|
|
By:
|
|
ElderTrust, its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Trustee and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
ET SUB-SANATOGA LIMITED PARTNERSHIP
|
|
|
|
|
|
|
|
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|
|
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By:
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ET Sanatoga, LLC, its General Partner
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By:
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ElderTrust Operating Limited
|
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Partnership, its Sole Member
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By:
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ElderTrust, its General Partner
|
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By:
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/s/ T. Richard Riney
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Name:
|
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T. Richard Riney
|
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Title:
|
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Trustee and Secretary
|
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ET SANATOGA, LLC
|
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By:
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ElderTrust Operating Limited
|
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Partnership, its Sole Member
|
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By:
|
|
ElderTrust, its General Partner
|
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By:
|
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/s/ T. Richard Riney
|
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Name:
|
|
T. Richard Riney
|
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|
|
Title:
|
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Trustee and Secretary
|
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ET SUB-SMOB, L.L.C.
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By:
|
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/s/ T. Richard Riney
|
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Name:
|
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T. Richard Riney
|
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Title:
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Secretary
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VERNON ALF, L.L.C.
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By:
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ElderTrust Operating Limited
|
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Partnership, its Sole Member
|
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By:
|
|
ElderTrust, its General Partner
|
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|
|
|
|
|
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|
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By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Trustee and Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
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|
|
|
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|
ET SUB-WILLOWBROOK LIMITED PARTNERSHIP, L.L.P.
|
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By:
|
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ET GENPAR, L.L.C., its General Partner
|
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|
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By:
|
|
ElderTrust Operating Limited
|
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|
|
|
|
|
|
|
Partnership, its Sole Member
|
|
|
|
|
|
|
By:
|
|
ElderTrust, its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Trustee and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
ET SUB-WAYNE I LIMITED PARTNERSHIP, L.L.P.
|
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|
|
|
|
|
|
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|
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|
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By:
|
|
ET Wayne Finance, L.L.C., its General Partner
|
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|
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|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Secretary
|
|
|
|
|
|
|
|
|
|
|
|
ET WAYNE FINANCE, L.L.C.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Secretary
|
|
|
|
|
|
|
|
|
|
|
|
ET WAYNE FINANCE, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Chairman, Executive Vice President and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
ET SUB-WOODBRIDGE, L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
ET GENPAR, L.L.C., its General Partner
|
|
|
|
|
|
|
By:
|
|
ElderTrust Operating Limited Partnership,
|
|
|
|
|
|
|
|
|
its Sole Member
|
|
|
|
|
|
|
By:
|
|
ElderTrust, its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Trustee and Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
PSLT GP, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
PSLT OP, L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
PSLT-BLC PROPERTIES HOLDINGS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF ARIZONA-EM, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF CALIFORNIA, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its Sole
|
|
|
|
|
|
|
|
|
Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF CALIFORNIA-RC, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF CALIFORNIA-SAN MARCOS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF ILLINOIS-2960, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF ILLINOIS-II, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
BLC OF CALIFORNIA-SAN MARCOS, L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Brookdale Living Communities of
|
|
|
|
|
|
|
|
|
California-San Marcos, LLC,
|
|
|
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE HOLDINGS, LLC
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF INDIANA-OL, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF MASSACHUSETTS-RB, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF MINNESOTA, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF NEW YORK-GB, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
BROOKDALE LIVING COMMUNITIES OF WASHINGTON-PP, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
THE PONDS OF PEMBROKE LIMITED PARTNERSHIP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Brookdale Holdings, LLC, its General
|
|
|
|
|
|
|
|
|
Partner
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
RIVER OAKS PARTNERS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Brookdale Holdings, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
PSLT-BLC Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
|
|
|
|
|
PSLT-ALS PROPERTIES HOLDINGS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
|
|
|
|
|
|
|
|
|
|
|
PSLT-ALS PROPERTIES I, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
PSLT-ALS Properties Holdings, LLC, its
|
|
|
|
|
|
|
|
|
Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT OP, L.P., its Sole Member
|
|
|
|
|
|
|
By:
|
|
PSLT GP, LLC, its General Partner
|
|
|
|
|
|
|
By:
|
|
Ventas Provident, LLC, its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ T. Richard Riney
|
|
|
|
|
|
|
|
|
|
Name:
|
|
T. Richard Riney
|
|
|
|
|
Title:
|
|
Executive Vice President, General Counsel and
|
|
|
|
|
|
|
Corporate Secretary
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
ADMINISTRATIVE AGENT:
|
BANK OF AMERICA, N.A.,
as Administrative Agent
|
|
|
By:
|
/s/ Charles Graber
|
|
|
|
Name:
|
Charles Graber
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
LENDERS:
|
BANK OF AMERICA, N.A., individually as a Lender, the
Swingline Lender and the Issuing Bank
|
|
|
By:
|
/s/ Peter D. Griffith
|
|
|
|
Name:
|
Peter D. Griffith
|
|
|
|
Title:
|
SVP
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
CALYON NEW YORK BRANCH
|
|
|
By:
|
/s/ Attila Coach
|
|
|
|
Name:
|
Attila Coach
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
By:
|
/s/ Douglas Weir
|
|
|
|
Name:
|
Douglas Weir
|
|
|
|
Title:
|
Director
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
CITICORP NORTH AMERICA, INC.
|
|
|
By:
|
/s/ Malav Kakad
|
|
|
|
Name:
|
Malav Kakad
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
MERRILL LYNCH CAPITAL CORPORATION
|
|
|
By:
|
/s/ Michael E. OBrien
|
|
|
|
Name:
|
Michael E. OBrien
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
UBS LOAN FINANCE LLC
|
|
|
By:
|
/s/ Iris R. Otsa
|
|
|
|
Name:
|
Iris R. Otsa
|
|
|
|
Title:
|
Associate Director Banking Products Services, US
|
|
|
|
|
|
By:
|
/s/ Toba Lumbantobing
|
|
|
|
Name:
|
Toba Lumbantobing
|
|
|
|
Title:
|
Associate Director Banking Products Services, US
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
DEUTSCHE BANK TRUST COMPANY AMERICAS
|
|
|
By:
|
/s/ Frederick W. Laird
|
|
|
|
Name:
|
Frederick W. Laird
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
By:
|
/s/ Ming K. Chu
|
|
|
|
Name:
|
Ming K. Chu
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
BANK OF MONTREAL
|
|
|
By:
|
/s/ Virginia Neale
|
|
|
|
Name:
|
Virginia Neale
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
KEYBANK NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ Florentina Djulvezan
|
|
|
|
Name:
|
Florentina Djulvezan
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
LASALLE BANK NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ A. Brad Feine
|
|
|
|
Name:
|
A. Brad Feine
|
|
|
|
Title:
|
AVP
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
MORGAN STANLEY BANK
|
|
|
By:
|
/s/ Daniel Twenge
|
|
|
|
Name:
|
Daniel Twenge
|
|
|
|
Title:
|
Vice President
Morgan Stanley Bank
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
|
|
|
By:
|
/s/ Marc E. Costantino
|
|
|
|
Name:
|
Marc E. Costantino
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
WACHOVIA BANK, NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ Jeanette A. Griffin
|
|
|
|
Name:
|
Jeanette A. Griffin
|
|
|
|
Title:
|
Director
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
EMIGRANT BANK
|
|
|
By:
|
/s/ Dan LePage
|
|
|
|
Name:
|
Dan LePage
|
|
|
|
Title:
|
Managing Director & VP
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
ALLIED IRISH BANKS, PLLC
|
|
|
By:
|
/s/ Denise Mayger
|
|
|
|
Name:
|
Denise Mayger
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
By:
|
/s/ Gregory J. Wiske
|
|
|
|
Name:
|
Gregory J. Wiske
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
BANK OF THE WEST
|
|
|
By:
|
/s/ Stacey Michrownski
|
|
|
|
Name:
|
Stacey Michronski
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
By:
|
/s/ Jan Manista
|
|
|
|
Name:
|
Jan Manista
|
|
|
|
Title:
|
Vice President
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
|
|
|
|
|
|
STATE BANK OF INDIA, NEW YORK BRANCH
|
|
|
By:
|
/s/ Rakesh Chandra
|
|
|
|
Name:
|
Rakesh Chandra
|
|
|
|
Title:
|
Vice President & Head (Credit)
|
|
VENTAS REALTY, LIMITED PARTNERSHIP
CREDIT AND GUARANTY AGREEMENT
Schedule 1.1
LENDERS AND COMMITMENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving
|
|
|
|
|
|
|
|
Commitment
|
|
Lender
|
|
Revolving Commitment
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
|
|
Bank of America, N.A.
|
|
$
|
52,000,000.00
|
|
|
|
10.400000000
|
%
|
Calyon New York Branch
|
|
$
|
47,000,000.00
|
|
|
|
9.400000000
|
%
|
Citicorp North America, Inc.
|
|
$
|
37,000,000.00
|
|
|
|
7.400000000
|
%
|
Merrill Lynch Capital Corporation
|
|
$
|
37,000,000.00
|
|
|
|
7.400000000
|
%
|
UBS Loan Finance LLC
|
|
$
|
37,000,000.00
|
|
|
|
7.400000000
|
%
|
Deutsche Bank Trust Company
Americas
|
|
$
|
35,000,000.00
|
|
|
|
7.000000000
|
%
|
Bank of Montreal
|
|
$
|
35,000,000.00
|
|
|
|
7.000000000
|
%
|
KeyBank National Association
|
|
$
|
35,000,000.00
|
|
|
|
7.000000000
|
%
|
LaSalle Bank National Association
|
|
$
|
35,000,000.00
|
|
|
|
7.000000000
|
%
|
Morgan Stanley Bank
|
|
$
|
35,000,000.00
|
|
|
|
7.000000000
|
%
|
JPMorgan Chase Bank, N.A.
|
|
$
|
25,000,000.00
|
|
|
|
5.000000000
|
%
|
Wachovia Bank, National
Association
|
|
$
|
25,000,000.00
|
|
|
|
5.000000000
|
%
|
Emigrant Bank
|
|
$
|
25,000,000.00
|
|
|
|
5.000000000
|
%
|
Allied Irish Banks, plc
|
|
$
|
15,000,000.00
|
|
|
|
3.000000000
|
%
|
Bank of the West
|
|
$
|
15,000,000.00
|
|
|
|
3.000000000
|
%
|
State Bank of India, New York
Branch
|
|
$
|
10,000,000.00
|
|
|
|
2.000000000
|
%
|
|
|
|
|
|
|
|
Total:
|
|
$
|
500,000,000.00
|
|
|
|
100.0000000000
|
%
|
|
|
|
|
|
|
|
Schedule 2.11(b)
EXISTING LETTERS OF CREDIT
Irrevocable Transferable Standby Letter of Credit No. 3074663 dated as of April 22, 2006 and issued
by Bank of America, N.A. for the account of the Borrower in favor of 111 South Wacker Venture, LLC,
c/o The John Buck Company, in an original amount not to exceed $225,000, expiring April 22, 2007.
Schedule 4.1(a)
LIST OF LIMITED PARTNERS OF BORROWER
The sole limited partner of the Borrower is:
Ventas LP Realty, L.L.C.
10350 Ormsby Park Place, Suite 300
Louisville, Kentucky 40223
Schedule 4.2
EXCEPTIONS TO AUTHORITY AND NO VIOLATION REPRESENTATION AND WARRANTY
Agreements evidencing the following guaranty and indemnification obligation in favor of Ventas:
|
|
|
|
|
|
|
Amount
|
|
|
|
|
(Balance as of
|
|
|
Obligation (facility number)
|
|
12/31/98)
|
|
Indemnity in favor of Ventas from:
|
Omega Healthcare
|
|
$0.3 million
|
|
Kindred Healthcare Operating, Inc.
|
Schedule 4.7
CREDIT PARTIES AND THEIR SUBSIDIARIES
Credit Parties:
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
Ventas, Inc. (Ventas)
|
|
Delaware
|
|
Authorized capital stock:
|
|
|
|
|
180,000,000 shares of
common stock, $0.25 par
value; 10,000,000 shares
of preferred stock, $1.00
par value Shares outstanding: 103,850,175 shares of
common stock, no shares of
preferred stock at March
31, 2006
|
Ventas Realty, Limited Partnership
(VRLP)
|
|
Delaware
|
|
99% owned by Ventas, its
sole general partner; 1%
owned by Ventas LP Realty,
L.L.C., its limited
partner
|
Ventas Capital Corporation
|
|
Delaware
|
|
100 shares of common stock
authorized and
outstanding; 100% owned by
VRLP
|
Ventas LP Realty, L.L.C.
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas TRS, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Healthcare Properties, Inc.
|
|
Delaware
|
|
1,000 shares of common
stock authorized and
outstanding; 100% owned by
Ventas
|
Ventas Management, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Framingham, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Sun LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Cal Sun LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Provident, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Finance I, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and
outstanding; 100% owned by
Ventas
|
Ventas Specialty I, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and
outstanding; 100% owned by
Ventas
|
Ventas Specialty I, LLC
|
|
Delaware
|
|
100% owned by Ventas
Specialty I, Inc.
|
ElderTrust
|
|
Maryland
|
|
100% owned by Ventas
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
ElderTrust Operating Limited Partnership
(ETOP)
|
|
Delaware
|
|
92.4% owned by ElderTrust,
its sole general partner
and a limited partner;
6.7% owned by Ventas, a
limited partner; 0.4%
owned by ET
Sub-Washington-Falls, LLC
(a subsidiary of Norland
Plastics Company), a
limited partner; 0.5%
owned by former Provident
shareholders, limited
partners
|
ET Capital Corp.
|
|
Delaware
|
|
1,000 shares of common
stock authorized and
outstanding; 100% owned by
ETOP
|
ET Sub-Berkshire Limited Partnership
|
|
Delaware
|
|
1% owned by ET Berkshire,
LLC, its sole general
partner; 99% owned by
ETOP, its limited partner
|
ET Berkshire, LLC
|
|
Delaware
|
|
100% owned by ETOP
|
Cabot ALF, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
Cleveland ALF, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Heritage Woods, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Highgate, L.P.
|
|
Pennsylvania
|
|
0.1% owned by ET GENPAR,
L.L.C., its sole general
partner; 99.9% owned by
ETOP, its limited partner
|
ET GENPAR, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Lacey I, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Lehigh Limited Partnership
|
|
Delaware
|
|
1% owned by ET Lehigh,
LLC, its sole general
partner; 99% owned by
ETOP, its limited partner
|
ET Lehigh, LLC
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Lopatcong, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Pennsburg Manor Limited
Partnership, L.L.P.
|
|
Virginia
|
|
0.1% owned by ET Pennsburg
Finance, L.L.C., its sole
general partner; 99.9%
owned by ETOP, its limited
partner
|
ET Pennsburg Finance, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Phillipsburg I, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Pleasant View, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Rittenhouse Limited Partnership,
L.L.P.
|
|
Virginia
|
|
0.1% owned by ET GENPAR,
L.L.C., its sole general
partner; 99.9% owned by
ETOP, its limited partner
|
ET Sub-Riverview Ridge Limited
Partnership, L.L.P.
|
|
Virginia
|
|
0.1% owned by ET GENPAR,
L.L.C., its sole general
partner; 99.9% owned by
ETOP, its limited partner
|
ET Sub-Sanatoga Limited Partnership
|
|
Delaware
|
|
1% owned by ET Sanatoga,
LLC, its sole general
partner; 99% owned by
ETOP, its limited partner
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
ET Sanatoga, LLC
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-SMOB, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
Vernon ALF, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Willowbrook Limited Partnership,
L.L.P.
|
|
Virginia
|
|
0.1% owned by ET GENPAR,
L.L.C., its sole general
partner; 99.9% owned by
ETOP, its limited partner
|
ET Sub-Wayne I Limited Partnership, L.L.P.
|
|
Virginia
|
|
0.1% owned by ET Wayne
Finance, L.L.C., its sole
general partner; 99.9%
owned by ETOP, its limited
partner
|
ET Wayne Finance, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Wayne Finance, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and
outstanding; 100% owned by
ElderTrust
|
ET Sub-Woodbridge, L.P.
|
|
Pennsylvania
|
|
0.1% owned by ET GENPAR,
L.L.C., its sole general
partner; 99.9% owned by
ETOP, its limited partner
|
PSLT GP, LLC
|
|
Delaware
|
|
100% owned by Ventas
Provident, LLC
|
PSLT OP, L.P.
|
|
Delaware
|
|
1% owned by PSLT GP, LLC,
its sole general partner;
97.55% owned by Ventas
Provident, its limited
partner; 1.45% owned by
ETOP, its limited partner
|
PSLT-BLC Properties Holdings, LLC (BLC
Holdings)
|
|
Delaware
|
|
100% owned by PSLT OP, L.P.
|
Brookdale Living Communities of
Arizona-EM, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
California, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
California-RC, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
California-San Marcos, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Illinois-2960, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Illinois-II, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
BLC of California-San Marcos, L.P.
|
|
Delaware
|
|
1% owned by Brookdale
Living Communities of
California-San Marcos,
LLC, its sole general
partner; 99% owned by BLC
Holdings, its limited
partner
|
Brookdale Holdings, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
Brookdale Living Communities of
Indiana-OL, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Massachusetts-RB, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Minnesota, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of New
York-GB, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Washington-PP, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
The Ponds of Pembroke Limited Partnership
|
|
Illinois
|
|
1% owned by Brookdale
Holdings, LLC, its sole
general partner; 99% owned
by BLC Holdings
|
River Oaks Partners
|
|
Illinois
|
|
1% owned by Brookdale
Holdings, LLC, its sole
general partner; 99% owned
by BLC Holdings
|
PSLT-ALS Properties Holdings, LLC
|
|
Delaware
|
|
100% owned by PSLT OP, L.P.
|
PSLT-ALS Properties I, LLC
|
|
Delaware
|
|
100% owned by PSLT-ALS
Properties I, LLC
|
Subsidiaries of Credit Parties (who are not otherwise Credit Parties):
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
Ventas Kansas City I, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Farmington Hills, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Regency Medical Park I, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Fairwood, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Whitehall Estates, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Bayshore Medical, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Brighton, LLC
|
|
Delaware
|
|
100% owned by Ventas
|
Ventas Amberleigh, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Crown Pointe, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Harrison, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas West Shores, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Santa Barbara, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
Ventas Georgetowne, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
Ventas Rose Arbor, LLC
|
|
Delaware
|
|
100% owned by VRLP
|
ET Heritage Andover Finance, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and outstanding;
100% owned by ElderTrust
|
ET DCMH Finance, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and outstanding;
100% owned by ElderTrust
|
ET POB I Finance, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and outstanding;
100% owned by ElderTrust
|
ET Belvedere Finance, Inc.
|
|
Delaware
|
|
100 shares of common stock
authorized and outstanding;
100% owned by ElderTrust
|
ET Sub-Cabot Park, LLC
|
|
Delaware
|
|
99% owned by ETOP; 1% owned by
Cabot ALF, L.L.C.
|
ET Sub-Vernon Court, LLC
|
|
Delaware
|
|
99% owned by ETOP; 1% owned by
Vernon ALF, L.L.C.
|
ET Sub-Cleveland Circle, LLC
|
|
Delaware
|
|
99% owned by ETOP; 1% owned by
Cleveland ALF, L.L.C.
|
ET Sub-Heritage Andover, LLC
|
|
Delaware
|
|
100% owned by ETOP
|
ET DCMH Finance, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-DCMH Limited Partnership, L.L.P.
|
|
Virginia
|
|
0.1% owned by ET DCMH Finance,
L.L.C., its sole general
partner; 99.9% owned by ETOP,
its limited partner
|
ET POB I Finance, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-POB I Limited Partnership, L.L.P.
|
|
Virginia
|
|
0.1% owned by ET POB I Finance,
L.L.C., its sole general
partner; 99.9% owned by ETOP,
its limited partner
|
ET Belvedere Finance, L.L.C.
|
|
Delaware
|
|
100% owned by ETOP
|
ET Sub-Belvedere Limited Partnership,
L.L.P.
|
|
Virginia
|
|
0.1% owned by ET Belvedere
Finance, L.L.C., its sole
general partner; 99.9% owned by
ETOP, its limited partner
|
Brookdale Living Communities of
Illinois-HV, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Connecticut, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
BLC Issuer II, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
DBF Issuer I, LLC
|
|
Ohio
|
|
100% owned by BLC Issuer II, LLC
|
Brookdale Living Communities of
Illinois-Hoffman Estates, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
|
|
|
or
|
|
|
Name
|
|
Organization
|
|
Ownership
|
BLC of Indiana-OL, L.P.
|
|
Delaware
|
|
1% owned by Brookdale Living
Communities of Indiana-OL, LLC,
its sole general partner; 99%
owned by BLC Holdings
|
Brookdale Living Communities of
Florida-CL, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of New
Jersey, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Connecticut-WH, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of
Illinois-HLAL, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
Brookdale Living Communities of New
Mexico-SF, LLC
|
|
Delaware
|
|
100% owned by BLC Holdings
|
PSLT-ALS Properties II, LLC
|
|
Delaware
|
|
100% owned by PSLT-ALS
Properties Holdings, LLC
|
Schedule 12.2
NOTICE ADDRESSES
Credit Parties
:
|
|
|
Ventas Realty, Limited Partnership
10350 Ormsby Park Place, Suite 300
Louisville, KY 40223
|
Attention:
|
|
General Counsel
|
Telephone:
|
|
(502) 357-9020
|
Facsimile:
|
|
(502) 357-9001
|
Website:
|
|
www.ventasreit.com
|
With a copy to:
|
|
|
Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP
333 West Wacker Drive, Suite 2700
Chicago, IL 60606
|
Attention:
|
|
Howard Kirschbaum
|
Telephone:
|
|
(312) 984-3103
|
Facsimile:
|
|
(312) 984-3150
|
Administrative Agent
:
For payments and requests for Extensions of Credit:
|
|
|
Bank of America, N.A.
101 North Tryon Street, NC1-001-04-39
Charlotte, NC 28255
|
Attention:
|
|
Monika Patel, Agency Services
|
Telephone:
|
|
(704) 386-5094
|
Facsimile:
|
|
(704) 409-0157
|
Email:
|
|
monika.patel@bankofamerica.com
|
Wiring Instructions:
Bank of America NA
New York, NY
ABA # : 026009593
Acct # : 1366212250600
Account Name: Credit Services
Ref: Ventas Realty, Limited Partnership
For all other notices:
|
|
|
Bank of America, N.A., as Administrative Agent
Mailcode CA5-701-05-19
1455 Market Street, 5th Floor
San Francisco, CA 94103
|
Attention:
|
|
Charles D. Graber, Vice President
|
Telephone:
|
|
(415) 436-3495
|
Facsimile:
|
|
(415) 503-5006
|
Email:
|
|
charles.graber@bankofamerica.com
|
With a copy to:
|
|
|
Bank of America, N.A.
100 N. Tryon Street, NC1-007-17-11
Charlotte, NC 28255
|
Attention:
|
|
Harrison Perry, Assistant Vice President
|
Telephone:
|
|
(704) 386-6603
|
Facsimile:
|
|
(704) 388-6002
|
Email:
|
|
harrison.perry@bankofamerica.com
|
Schedule 12.6
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
Assignment
Fee
) in the amount of $3,500 for each assignment;
provided
,
however
, that in
the event of two or more concurrent assignments to members of the same Assignee Group (which may be
effected by a suballocation of an assigned amount among members of such Assignee Group) or two or
more concurrent assignments by members of the same Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group), the Assignment Fee will be $2,500 plus
the amount set forth below:
|
|
|
|
|
Transaction
|
|
Assignment Fee
|
|
First four concurrent assignments or suballocations to
members of an Assignee Group (or from members of an
Assignee Group, as applicable)
|
|
$
|
0
|
|
Each additional concurrent assignment or suballocation to a
member of such Assignee Group (or from a member of such
Assignee Group, as applicable)
|
|
$
|
500
|
|
Exhibit 2.1
FORM OF BORROWING BASE CERTIFICATE
Reference is hereby made to the Credit and Guaranty Agreement, dated as of April 26, 2006 (as
amended, restated, extended, supplemented, renewed, replaced or otherwise modified from time to
time, the
Credit Agreement
), by and among Ventas Realty, Limited Partnership (the
Borrower
), the Guarantors referred to therein, the lenders from time to time party
thereto (together with their successors and assigns, the
Lenders
), and Bank of America,
N.A., as administrative agent (the
Administrative Agent
) for the Lenders, the Issuing
Bank and the Swingline Lender. Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.
The Borrower does hereby certify that (i) the information set forth on
Annex I
is true,
complete and correct in all respects to the best of its knowledge, (ii) the calculations set forth
on
Annex I
(Unencumbered Asset Pool and Calculation of Borrowing Base) are calculated as of
the date of this certificate, and (B) comply in all respects with the terms and conditions of the
Credit Agreement and (iii) each of the properties shown on
Annex I
meets the conditions for
eligibility as a UAP Property for inclusion in the Borrowing Base under the Credit Agreement,
including the condition that no base rent payments are more than sixty (60) days past due.
|
|
|
|
|
|
|
|
|
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
|
|
|
|
|
|
|
|
|
|
|
|
By: VENTAS, INC., a Delaware corporation, its
general partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
Annex I
UNENCUMBERED ASSET POOL AND CALCULATION OF BORROWING BASE
(in thousands of Dollars)
As of
__, 20__
|
|
|
|
|
|
|
|
|
Recap of NOI
|
|
|
|
|
|
|
|
|
Government reimbursed
properties and assets
|
|
|
|
|
|
$
|
|
|
Non-government
reimbursed properties
and assets
|
|
|
|
|
|
$
|
|
|
Properties at cost
|
|
|
|
|
|
$
|
|
|
Total:
|
|
|
|
|
|
$
|
|
|
Summary of Consolidated
UAP Property Value
|
|
|
|
|
|
|
|
|
Government reimbursed
properties and assets
|
|
|
|
%
|
|
$
|
|
|
Non-government
reimbursed properties and assets
|
|
|
|
%
|
|
$
|
|
|
Properties at cost
|
|
|
|
|
|
$
|
|
|
Total:
|
|
|
|
|
|
$
|
|
|
Calculation of Borrowing
Base
|
|
|
|
|
|
|
|
|
Consolidated UAP
Property Value
|
|
|
|
|
|
$
|
|
|
Stated Percentage
|
|
|
|
|
|
|
|
%
|
Borrowing Base
|
|
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
Tenant/Operator
|
|
Property
Identification
Number
|
|
Property Name
and Address
|
|
Capitalization
Rate
|
|
Consolidated
Unencumbered
NOI
|
|
|
|
|
|
Legend
|
|
|
|
|
G
|
|
Government reimbursed properties and assets
|
N
|
|
Non-government reimbursed properties and assets
|
C
|
|
Cost
|
ML1, ML1a, ML2, ML3, ML4 and ML-5 Kindred Healthcare, Inc. Master Leases
CSL Capital Senior Living
Exhibit 2.2
FORM OF LOAN NOTICE
Date:
To:
|
|
Bank of America, N.A., as Administrative Agent
|
|
Re:
|
|
Credit and Guaranty Agreement, dated as of April 26, 2006 (as amended, restated, extended, supplemented, renewed,
replaced or otherwise modified from time to time, the
Credit Agreement
), by and among Ventas Realty, Limited
Partnership (the
Borrower
), the Guarantors referred to therein, the lenders from time to time party thereto
(together with their successors and assigns, the
Lenders
), and Bank of America, N.A., as administrative agent
(the
Administrative Agent
) for the Lenders, the Issuing Bank and the Swingline Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the Credit Agreement.
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Ladies and Gentlemen:
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1.
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The undersigned hereby requests the following:
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o
a Swingline Loan Borrowing
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o
a Revolving Loan Borrowing
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o
a Revolving Loan continuation
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o
a Revolving Loan conversion
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2.
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Date of Borrowing (which shall be a Business Day):
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3.
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Amount and Currency of Borrowing:
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4.
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Type of Loan requested (select one):
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o
Base Rate Loan (required for Domestic Swingline)
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o
Eurodollar Rate Loan
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5.
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Interest Period for Eurodollar Rate Loans (select one):
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o
One Month
o
Two Months
o
Three Months
o
Six Months
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The Borrower hereby represents and warrants that (a) this request for Extension of Credit complies
with the requirements of Section 2.1(a), with respect to Revolving Loans, and Section 2.1(c), with
respect to new Swingline Loans, and with the requirements of Section 2.2 of the Credit Agreement
and (b) the representations and warranties contained in Section 5.2(b) and (c) of the Credit
Agreement will be satisfied on and as of the date of the requested Extension of Credit.
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BORROWER:
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VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
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By: VENTAS, INC., a Delaware corporation, its
general partner
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By:
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Name:
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Title:
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Exhibit 2.4(e)-1
FORM OF REVOLVING NOTE
__, 20__
FOR VALUE RECEIVED, the undersigned (the
Borrower
), hereby promises to pay to
, its successors or registered assigns (the
Revolving Lender
), the
amount of the Revolving Lenders Revolving Commitment, or if less, the aggregate unpaid principal
amount of all Revolving Loans owing to the Revolving Lender by the Borrower under the Credit and
Guaranty Agreement, dated as of April 26, 2006 (as amended, restated, extended, supplemented,
renewed, replaced or otherwise modified from time to time, the
Credit Agreement
), by and
among Ventas Realty, Limited Partnership (the
Borrower
), the Guarantors referred to
therein, the lenders from time to time party thereto (together with their successors and assigns,
the
Lenders
), and Bank of America, N.A., as administrative agent (the
Administrative
Agent
) for the Lenders, the Issuing Bank and the Swingline Lender. Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date of such Revolving Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the Revolving Lender, at the
Administrative Agents Office, in Dollars in immediately available funds. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (before as well as after judgment)
computed at the applicable per annum rate set forth in the Credit Agreement.
This Revolving Note is one of the Notes referred to in the Credit Agreement and is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided in the Credit Agreement. Revolving Loans made by the Revolving Lender may be evidenced by
one or more loan accounts or records maintained by the Revolving Lender in the ordinary course of
business. The Revolving Lender may also attach schedules to this Revolving Note and endorse
thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto.
Upon the occurrence and continuation of an Event of Default, all amounts then remaining unpaid
on this Revolving Note shall become, or may be declared to be, immediately due and payable as
provided in the Credit Agreement, without diligence, presentment, protest and demand or notice of
protest, demand, dishonor and non-payment of this Revolving Note, all of which are hereby waived by
the Borrower, for itself and its successors and assigns.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
[SIGNATURE ON FOLLOWING PAGE]
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BORROWER:
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VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
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By: VENTAS, INC., a Delaware corporation, its
general partner
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By:
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Name:
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Title:
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Exhibit 2.4(e)-2
FORM OF SWINGLINE NOTE
__, 20__
FOR VALUE RECEIVED, the undersigned (the
Borrower
), hereby promises to pay to
, its successors or registered assigns (the
Swingline Lender
), the
aggregate unpaid principal amount of all Swingline Loans owing by the Borrower to the Swingline
Lender under the Credit Agreement, dated as of April 26, 2006 (as amended, restated, extended,
supplemented, renewed, replaced or otherwise modified from time to time, the
Credit
Agreement
), by and among Ventas Realty, Limited Partnership (the
Borrower
), the
Guarantors referred to therein, the lenders from time to time party thereto (together with their
successors and assigns, the
Lenders
), and Bank of America, N.A., as administrative agent
(the
Administrative Agent
) for the Lenders, the Issuing Bank and the Swingline Lender.
Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Swingline Loan
from the date of such Swingline Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made to the Swingline Lender in Dollars in immediately available funds. If any
amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (before as well as after
judgment) computed at the applicable per annum rate set forth in the Credit Agreement.
This Swingline Note is one of the Notes referred to in the Credit Agreement and is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided in the Credit Agreement. Swingline Loans made by the Swingline Lender may be evidenced by
one or more loan accounts or records maintained by the Swingline Lender in the ordinary course of
business. The Swingline Lender may also attach schedules to this Swingline Note and endorse
thereon the date, amount and maturity of its Loans and payments with respect thereto.
Upon the occurrence and continuation of an Event of Default, all amounts then remaining unpaid
on this Swingline Note shall become, or may be declared to be, immediately due and payable as
provided in the Credit Agreement, without diligence, presentment, protest and demand or notice of
protest, demand, dishonor and non-payment of this Swingline Note, all of which are hereby waived by
the Borrower, for itself and its successors and assigns.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
[SIGNATURE ON FOLLOWING PAGE]
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BORROWER:
|
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VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
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By: VENTAS, INC., a Delaware corporation, its
general partner
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By:
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Name:
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Title:
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Exhibit 2.7(b)
FORM OF NOTICE OF PREPAYMENT
Re:
|
|
Credit and Guaranty Agreement, dated as of April 26, 2006 (as amended, restated, extended,
supplemented, renewed, replaced or otherwise modified from time to time, the
Credit
Agreement
), by and among Ventas Realty, Limited Partnership (the
Borrower
), the
Guarantors referred to therein, the lenders from time to time party thereto (together with
their successors and assigns, the
Lenders
), and Bank of America, N.A., as
administrative agent (the
Administrative Agent
) for the Lenders, the Issuing Bank
and the Swingline Lender. Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.
|
The undersigned hereby notifies the Administrative Agent that it is making a prepayment of
Loans as follows:
|
1.
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|
Date of prepayment.
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|
2.
|
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Type and principal amount of existing Loan being prepaid.
1
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3.
|
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If a Eurodollar Rate Loan is being prepaid, last day
of the Interest Period with respect thereto.
|
IN WITNESS WHEREOF, the undersigned has caused this notice to be executed this
_____
day
of
.
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VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
|
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By:
|
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VENTAS, INC., a Delaware corporation, its
general partner
|
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By:
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Name:
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Title:
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1
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Specify Base Rate Loan or Eurodollar Rate Loan.
|
Exhibit 5.1(g)
FORM OF CLOSING CERTIFICATE
Reference is made to that certain Credit and Guaranty Agreement, dated as of April 26, 2006
(as amended, restated, extended, supplemented, renewed, replaced or otherwise modified from time to
time, the
Credit Agreement
), by and among Ventas Realty, Limited Partnership (the
Borrower
), the Guarantors referred to therein, the lenders from time to time party
thereto (together with their successors and assigns, the
Lenders
), and Bank of America,
N.A., as administrative agent (the
Administrative Agent
) for the Lenders, the Issuing
Bank and the Swingline Lender. Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.
The undersigned Authorized Officer of the Borrower hereby certifies, pursuant to
Section 5.1(g) of the Credit Agreement, that immediately after giving effect to the initial Loans
made and Letters of Credit issued on the Closing Date:
1. all of the representations and warranties set forth in
Article IV
of the
Credit Agreement and in any other Fundamental Document in existence as of the date hereof
are true and correct in all material respects on and as of the date hereof;
2. the Credit Parties are in compliance on a Pro Forma Basis with each of the financial
covenants set forth in Section 7.10 of the Credit Agreement; and
3. no Default or Event of Default has occurred and is continuing as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as
of the Borrower.
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|
|
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
|
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|
|
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|
|
By:
|
|
VENTAS, INC., a Delaware corporation, its
general partner
|
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By:
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Name:
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Title:
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Date: April ___, 2006
Exhibit 6.2(a)
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:
, 200__
To:
|
|
Bank of America, N.A., as Administrative Agent
|
|
Re:
|
|
Credit and Guaranty Agreement, dated as of April 26, 2006 (as amended,
restated, extended, supplemented, renewed, replaced or otherwise
modified from time to time, the
Credit Agreement
), by and among
Ventas Realty, Limited Partnership (the
Borrower
), the Guarantors
referred to therein, the lenders from time to time party thereto
(together with their successors and assigns, the
Lenders
), and Bank
of America, N.A., as administrative agent (the
Administrative Agent
)
for the Lenders, the Issuing Bank and the Swingline Lender.
Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.
|
Ladies and Gentlemen:
The undersigned Authorized Officer hereby certifies as of the date hereof that [he/she] is the
of Ventas, and that, in [his/her] capacity as such, [he/she] is authorized to
execute and deliver this certificate to the Administrative Agent and the Lenders on the behalf of
Ventas, and that:
[Use following paragraph 1 for fiscal year-end financial statements:]
[1. [Attached hereto as
Schedule 1
are the] [The] audited, consolidated financial
statements required by Section 6.1(a) of the Credit Agreement for the fiscal year of Ventas ended
as of the above date, together with the report and opinion of an independent certified public
accountant required by such section [have been electronically delivered to the Administrative Agent
pursuant to the conditions set forth in Section 6.2 of the Credit Agreement].]
[Use following paragraph 1 for fiscal quarter-end financial statements:]
[1. [Attached hereto as
Schedule 1
are the] [The] unaudited, consolidated financial
statements required by Section 6.1(b) of the Credit Agreement for the fiscal quarter of Ventas
ended as of the above date [have been electronically delivered to the Administrative Agent pursuant
to the conditions set forth in Section 6.2 of the Credit Agreement]. Such financial statements
fairly present the financial condition, results of operations and cash flows of the Consolidated
Group in accordance with GAAP as at such date and for such period, subject only to normal year-end
audit adjustments and the absence of footnotes.]
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and condition (financial or
otherwise) of each member of the Consolidated Group during the accounting period covered by the
attached financial statements.
3. A review of the activities of each member of the Consolidated Group during such fiscal
period has been made under the supervision of the undersigned with a view to determining whether
during such fiscal period the Credit Parties have performed and observed all their respective
Obligations under the Fundamental Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, each of the Credit Parties has
performed and observed each covenant and condition of the Fundamental Documents applicable to it.]
[or:]
[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]
4. The financial covenant analyses and information set forth on
Schedule 2
hereto are
true and accurate on and as of the date of this certificate.
5. The Borrowers Debt Ratings are as follows:
[Insert Debt Ratings]
[SIGNATURE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
, 20____.
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|
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
|
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|
|
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|
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|
|
By:
|
|
VENTAS, INC., a Delaware corporation, its
general partner
|
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By:
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Name:
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Title:
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Exhibit 6.12
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated as of
,
20_____
(this
Joinder Agreement
), is by
and between
, a
(the
New Subsidiary
), and Bank of America, N.A., in
its capacity as Administrative Agent under that certain Credit and Guaranty Agreement, dated as of
April 26, 2006 (as amended, restated, extended, supplemented, renewed, replaced or otherwise
modified from time to time, the
Credit Agreement
), by and among Ventas Realty, Limited
Partnership (the
Borrower
), the Guarantors referred to therein, the lenders from time to
time party thereto (together with their successors and assigns, the
Lenders
), and the
Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Credit Agreement.
In connection with the addition of Properties to the pool of UAP Properties, the Credit
Parties are required by Section 6.12 of the Credit Agreement to cause the New Subsidiary to become
a Guarantor thereunder. Accordingly, the New Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Joinder Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a
Guarantor for all purposes of the Credit Agreement, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this
paragraph 1
, the New Subsidiary hereby jointly
and severally, together with the other Guarantors, guarantees to the Administrative Agent and each
of the holders of the Obligations, as provided in Article IX of the Credit Agreement, the prompt
payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in accordance with
the terms thereof.
2. The New Subsidiary hereby represents and warrants to the Administrative Agent that, as of
the date hereof:
(a) The New Subsidiarys exact legal name and jurisdiction of incorporation or
formation are as set forth on the signature pages hereto, and other than as set forth on
Schedule 1
hereto, the New Subsidiary has not changed its legal name, jurisdiction
of incorporation or formation, been party to a merger, consolidation or other change in
structure or used any tradename in the five years preceding the date hereof.
(b)
Schedule 2
hereto includes all Subsidiaries of the New Subsidiary,
including the jurisdiction of incorporation or formation.
3. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Credit Parties on Schedule 12.2 to the Credit Agreement or such
other address as the New Subsidiary may from time to time notify the Administrative Agent in
writing.
4. The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of
the guaranty by the New Subsidiary under Article IX of the Credit Agreement upon the execution of
this Joinder Agreement by the New Subsidiary.
5. This Joinder Agreement may be executed in multiple counterparts, each of which shall
constitute an original but all of which when taken together shall constitute one contract.
6. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the Lenders (including
the Swingline Lender and the Issuing Bank), has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
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[NEW SUBSIDIARY],
a
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By:
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Name:
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Title:
|
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Acknowledged and accepted:
|
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|
BANK OF AMERICA, N.A.,
as Administrative Agent
|
|
By:
|
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Name:
|
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Title:
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Exhibit 12.6(b)
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this
Assignment and Assumption
) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor identified in
item 1
below (the
Assignor
) and the Assignee identified in
item 2
below
(the
Assignee
). Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement identified in
item 5
below (the
Credit
Agreement
), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in
Annex 1
attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including, without limitation, the
Letters of Credit and the Swingline Loans included in such facilities) and (ii) to the extent
permitted to be assigned under applicable Law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to
clause (i)
above (the rights and obligations
sold and assigned by the Assignor to the Assignee pursuant to
clauses (i)
and
(ii)
above being referred to herein collectively as the
Assigned Interest
). Each such sale
and assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.
[indicate [Affiliate][Approved Fund] of [
identify Lender
]]
3.
|
|
Borrower
: VENTAS REALTY, LIMITED PARTNERSHIP
|
4.
|
|
Administrative Agent
: BANK OF AMERICA, N.A., as the administrative agent under the
Credit Agreement
|
5.
|
|
Credit Agreement
: Credit and Guaranty Agreement, dated as of April 26, 2006 (as
amended, restated, extended, supplemented, renewed, replaced or otherwise modified from time
to time, the
Credit Agreement
), by and among Ventas Realty, Limited Partnership (the
Borrower
), the Guarantors referred to therein, the lenders from time to time party
thereto (together with their successors and assigns, the
Lenders
), and Bank of
America, N.A., as administrative agent (the
Administrative Agent
) for the Lenders,
the Issuing Bank and the Swingline Lender.
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Aggregate
|
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|
Percentage
|
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|
|
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|
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Amount of
|
|
Amount of
|
|
Assigned of
|
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|
|
Commitment/Loans
|
|
Commitment/Loans
|
|
Commitment/
|
|
CUSIP
|
Assignor
|
|
Assignee
|
|
for all Lenders
1
|
|
Assigned
|
|
Loans
2
|
|
Number
|
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Effective Date:
,
20_____
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
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ASSIGNOR
[NAME OF ASSIGNOR]
|
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|
By:
|
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|
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Title:
|
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|
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ASSIGNEE
[NAME OF ASSIGNEE]
|
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|
By:
|
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|
|
|
Title:
|
|
[Consented to and]
4
Accepted:
|
|
|
|
BANK OF AMERICA, N.A.,
as Administrative Agent
|
|
By:
|
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|
Title:
|
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|
|
|
1
|
|
Amounts in this column and in the column immediately to
the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
|
|
2
|
|
Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
|
|
3
|
|
To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.
|
|
4
|
|
To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
|
[Consented to:]
5
|
|
|
|
|
[VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
VENTAS, INC., a Delaware corporation,
its general partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
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Title:
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BANK OF AMERICA, N.A., as
Issuing Bank and Swingline Lender
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By:
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Name:
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Title:
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6
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5
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To be added only if the consent of the Borrower and/or
other parties (e.g. Swingline Lender, Issuing Bank) is required by the terms of
the Credit Agreement.
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6
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To be added only if the consent of other parties (
i.e.
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the Borrower, the Issuing Bank and/or the Swingline Lender) is required by the
terms of the Credit Agreement.
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Annex 1
to Assignment and Assumption
STANDARD TERMS AND CONDITIONS
1.
Representations and Warranties
.
1.1.
Assignor
. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Fundamental Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Fundamental Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, the Guarantors, any of their Subsidiaries or Affiliates or any other
Person obligated in respect of any Fundamental Document or (iv) the performance or observance by
the Borrower or the Guarantors, any of their Subsidiaries or Affiliates or any other Person of any
of their respective obligations under any Fundamental Document.
1.2.
Assignee
. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to
Section 6.1
thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on
the basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, (v) if it is a Foreign Lender, it has delivered (or will
promptly deliver) to the Administrative Agent and the Borrower any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Fundamental Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Fundamental Documents are required to be performed by
it as a Lender.
2.
Payments
. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts that have accrued to but excluding the Effective
Date and to the Assignee for amounts that accrue from and after the Effective Date.
3.
General Provisions
. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.