As filed with the Securities and Exchange Commission on July 3, 2002
Registration No. 333-90756
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VENTAS, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-1055020
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
-----------------
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4360 Brownsboro Road, Suite 115
Louisville, Kentucky 40207-1642
(502) 357-9000
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
For Co-Registrants, please see "Table of Co-Registrants" on the following page.
T. Richard Riney, Esq.
General Counsel
Ventas, Inc. 4360 Brownsboro Road, Suite 115 Louisville, Kentucky 40207-1642 (502) 357-9000 (Name, address, including zip code, telephone number, including area code, of agent for service)
Copy to:
Maurice M. Lefkort, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Approximate date of commencement of proposed sale to the public: From time to time or at one time after the effective date of the Registration Statement as determined by the Registrants.
If the only securities being registered on this form are being offered pursuant to distribution or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with distribution or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_]
TABLE OF CO-REGISTRANTS
IRS Employer
Name State of Formation Identification Number
---- ------------------ ---------------------
Ventas Capital Corporation Delaware 35-2168770
Ventas LP Realty, L.L.C. Delaware 52-2093507
Ventas Realty, Limited Partnership Delaware 61-1324573
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The information in this Prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION
DATED JULY 3, 2002
Prospectus
$750,000,000
Ventas, Inc.
Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants
Ventas Realty, Limited Partnership and Ventas Capital Corporation
Debt Securities Fully and Unconditionally Guaranteed by Ventas, Inc. and Ventas LP Realty, L.L.C.
We may offer and sell, from time to time, in one or more offerings:
. debt securities
. preferred stock
. depositary shares
. common stock
. warrants
These securities may be offered and sold separately, together or as units with other securities described in this prospectus. Our debt securities may be senior or subordinated.
Ventas Realty, Limited Partnership and Ventas Capital Corporation may offer and sell, from time to time, in one or more offerings, debt securities which will be fully and unconditionally guaranteed by us and Ventas LP Realty, L.L.C. These debt securities and any such guarantees may be senior or subordinated. These debt securities may be offered and sold separately, together or as units with other securities described in this prospectus.
The securities described in this prospectus may be issued in one or more series or issuances. The total offering price of these securities, in the aggregate, will not exceed $750,000,000.
We will provide the specific terms of these securities and their offering prices in supplements to this prospectus. You should carefully read this prospectus and the applicable prospectus supplement before you decide to invest in any of these securities.
See "Risk Factors" on page 3 for a discussion of matters that you should consider before investing in these securities.
Our common stock is listed on the New York Stock Exchange under the symbol "VTR." The closing price of our common stock on the New York Stock Exchange was $12.97 per share on July 2, 2002. None of the other securities are currently publicly traded.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2002.
Table of Contents
Cautionary Statements........................................... 1 Ventas and Ventas Realty........................................ 2 Ventas Capital.................................................. 2 Ventas LLC...................................................... 3 Risk Factors.................................................... 3 Use of Proceeds................................................. 3 Ratio of Earnings to Fixed Charges and Preferred Stock Dividends 3 Description of Debt Securities.................................. 4 Description of Common Stock..................................... 11 Description of Preferred Stock.................................. 11 Description of Outstanding Capital Stock........................ 15 Description of Depositary Shares................................ 16 Description of Warrants......................................... 19 Plan of Distribution............................................ 20 Validity of the Offered Securities.............................. 22 Experts......................................................... 22 Where You Can Find More Information............................. 22 Incorporation by Reference...................................... 23 |
About This Prospectus
This prospectus is part of a registration statement we, Ventas Realty, Ventas LLC and Ventas Capital filed with the Securities and Exchange Commission (the "SEC") using a "shelf" registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus from time to time in one of more offerings up to a total dollar amount of $750,000,000 or the equivalent denominated in foreign currencies or units of foreign currencies.
This prospectus provides you only with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement containing specific information about the terms of that offering. The prospectus supplement may also add to, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information" and "Incorporation by Reference."
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an offer of these securities in any jurisdiction where it is unlawful. You should assume that the information in this prospectus or any prospectus supplement, as well as the information we have previously filed with the SEC and incorporated by reference in this prospectus, is accurate only as of the date of the documents containing the information.
References in this prospectus to "we," "us," "our" or "Ventas" mean Ventas, Inc. References in this prospectus to "Ventas Realty" mean Ventas Realty, Limited Partnership. References in this prospectus to "Ventas LLC" mean Ventas LP Realty, L.L.C. References in this prospectus to "Ventas Capital" mean Ventas Capital Corporation.
CAUTIONARY STATEMENTS
Forward-Looking Statements
This prospectus includes forward-looking statements. All statements regarding our and our subsidiaries' expected future financial position, results of operations, cash flows, funds from operations, dividends and dividend plans, financing plans, business strategy, budgets, projected costs, capital expenditures, competitive positions, growth opportunities, 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. Such forward-looking statements are inherently uncertain, and you should recognize that actual results may differ from our expectations. We do not undertake any duty to update such forward-looking statements.
Actual future results and trends for us may differ materially depending on a variety of factors discussed in this prospectus and elsewhere in our filings with the U.S. Securities and Exchange Commission (the "Commission"). Factors that may affect our plans or results include, without limitation:
. the ability and willingness of Kindred Healthcare, Inc. and certain of its affiliates (collectively, "Kindred") to continue to meet and honor their obligations under certain contractual arrangements with us, including the lease agreements and various agreements (the "Spin Agreements") entered into by us and Kindred at the time of our spin-off of Kindred on May 1, 1998 (the "1998 Spin Off"), as such agreements may have been amended and restated in connection with Kindred's emergence from bankruptcy on April 20, 2001;
. the ability and willingness of Kindred to continue to meet and/or honor its obligation to indemnify and defend us for all litigation and other claims relating to the healthcare operations and other assets and liabilities transferred to Kindred in the 1998 Spin Off;
. the ability of Kindred and our other operators to maintain the financial strength and liquidity necessary to satisfy their respective obligations and duties under the leases and other agreements with us and their existing credit agreements;
. our success in implementing our business strategy;
. the nature and extent of future competition;
. the extent of future healthcare reform and regulation, including cost containment measures and changes in reimbursement policies and procedures;
. increases in our cost of borrowing;
. the ability of our operators to deliver high quality care and to attract patients;
. the results of litigation affecting us;
. changes in general economic conditions or economic conditions in the markets in which we may, from time to time, compete;
. our ability to pay down, refinance, restructure, and extend our indebtedness as it becomes due;
. the movement of interest rates and the resulting impact on the value of our interest rate swap agreements and our ability to satisfy our obligation to post cash collateral if required to do so under one of these interest rate swap agreements;
. the ability and willingness of Atria, Inc. ("Atria") to continue to meet and honor its contractual arrangements with us and Ventas Realty entered into in connection with our spin-off of our assisted living facility and related assets and liabilities to Atria in August 1996;
. our ability and willingness to maintain our qualification as a REIT due to economic, market, legal, tax or other considerations, including the risk that we may fail to qualify as a REIT due to our ownership of Kindred common stock;
. the outcome of the audit being conducted by the Internal Revenue Service ("IRS") for our tax years ended December 31, 1997 and 1998;
. the final determination of our taxable net income for the tax year ended December 31, 2001;
. the ability and willingness of our tenants to renew their leases with us as the leases expire and our ability to relet our properties on the same or better terms if the leases are not renewed by the existing tenants; and
. the value of our common stock in Kindred and the limitations on our ability to sell, transfer or otherwise dispose of our common stock in Kindred arising out of the securities laws and the registration rights agreement we entered into with Kindred and certain of the holders of common stock in Kindred.
Many of these factors are beyond our control and the control of our management. For a discussion of these and other factors, see "Risk Factors" and our Annual Report on Form 10-K for the year ended December 31, 2001 and subsequent filings.
VENTAS AND VENTAS REALTY
We are a healthcare real estate investment trust. Our business consists of owning and leasing healthcare facilities. As of March 31, 2002, our properties included 215 skilled nursing facilities, 44 hospitals and 8 personal care facilities in 36 states. For the year ended December 31, 2001, we generated approximately $204.6 million in revenue and $174.3 million in EBITDA. For the three months ended March 31, 2002 we generated approximately $46.7 million in revenue and $43.9 million in EBITDA. Our primary tenant, Kindred, is one of the largest providers of long-term healthcare services in the United States. Kindred operates all of our hospitals and 210 of our skilled nursing facilities pursuant to five multi-facility master lease agreements. All of the master leases are structured as "triple-net" leases, under which Kindred is responsible for insurance, taxes, utilities, maintenance and repairs related to our properties.
We conduct substantially all of our business through two wholly-owned subsidiaries, Ventas Realty and Ventas Finance I, LLC. We and Ventas Realty owned 175 skilled nursing facilities, 44 hospitals and 8 personal care facilities as of March 31, 2002. We and Ventas Realty generated approximately $38.8 million in pro forma revenue and $38.8 million in pro forma EBITDA (as defined in our current credit facility and certain outstanding debt securities of Ventas Realty and Ventas Capital) for the three months ended March 31, 2002. The second subsidiary, Ventas Finance I, LLC, which was formed in connection with our commercial mortgage backed securitization transaction, owned 40 skilled nursing facilities as of March 31, 2002.
We commenced operations in 1985 as a company engaged in the business of owning, operating and acquiring healthcare facilities. In May 1998, we effected a spin-off, pursuant to which we were separated into two publicly held corporations. We retained the ownership of substantially all of the real property and leased such real property to Kindred. Kindred was formed to operate the skilled nursing facilities, hospitals and other businesses.
Our and Ventas Realty's principal executive offices are located at 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642, and our telephone number is (502) 357-9000.
VENTAS CAPITAL
Ventas Capital is a wholly owned subsidiary of Ventas Realty that was incorporated in Delaware for the purpose of serving as co-issuer with Ventas Realty of debt securities in order to facilitate the offering of such securities. Ventas Realty believes that certain prospective purchasers of the debt securities may be restricted in
their ability to purchase debt securities of partnerships, such as Ventas Realty, unless such debt securities are jointly issued by a corporation. Ventas Capital will not have any substantial operations or assets and will not have any revenues. As a result, prospective purchasers of the debt securities of Ventas Realty and Ventas Capital should not expect Ventas Capital to participate in servicing the interest and principal obligations on those debt securities.
The Ventas Capital's principal executive offices are located at 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642, and its telephone number is (502) 357-9000.
VENTAS LLC
Ventas LLC is a limited liability company that is organized under the laws of Delaware. Ventas is the sole member of Ventas LLC. Ventas LLC owns a limited partnership interest in Ventas Realty and conducts no other business and owns no other assets.
Ventas LLC's principal executive offices are located at 4360 Brownsboro
Road, Suite 115, Louisville, Kentucky 40207-1642, and its telephone number is
(502) 357-9000.
RISK FACTORS
Before you invest in our securities, you should carefully consider the risks involved. These risks include, but are not limited to:
. the risks described in our Annual Report on Form 10-K for the year ended December 31, 2001, which is incorporated by reference in this prospectus; and
. any risks that may be described in other filings we make with the SEC or in the prospectus supplements relating to specific offerings of securities.
USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we intend to use the net proceeds from the sale of any securities under this prospectus for general business purposes, which may include acquiring and investing in additional properties and the repayment of borrowings under our credit facility or other debt. Until the proceeds from a sale of securities by us, Ventas Realty and/or Ventas Capital are applied to their intended purposes, they may be invested in short-term investments, including repurchase agreements, some or all of which may not be investment grade.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratio of earnings to fixed charges and preferred stock dividends for each of the periods indicated was as follows:
Period From Year Ended
May 1, 1998 to December 31, Three Months
December 31, -------------- Ended March 31,
1998 1999 2000 2001 2002
-------------- ---- ---- ---- ---------------
Ratio of earnings to fixed charges and preferred stock
dividends (a)....................................... 1.94 1.48 0.35 1.59 1.55
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For this ratio, earnings consist of earnings (loss) before income taxes, minority interest and discontinued operations plus fixed charges excluding capitalized interest. Fixed charges consist of interest expensed and capitalized, plus the portion of rent expense under operating leases deemed by us to be representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt securities. The applicable prospectus supplement will describe the specific terms of the debt securities offered through that prospectus supplement as well as any general terms described in this section that will not apply to those debt securities.
The debt securities sold under this prospectus may be issued by:
. us under one or more indentures between us and a trustee;
. Ventas Realty and Ventas Capital under one or both of the indentures dated April 17, 2002 among us (as guarantor), Ventas Realty, Ventas Capital, Ventas LLC and U.S. Bank National Association, as trustee; or
. Ventas Realty and Ventas Capital under one or more other indentures to be entered into among us (as guarantor), Ventas Realty, Ventas Capital and a trustee.
We, Ventas Realty and Ventas Capital are collectively referred to in this section as the "issuers." The debt securities will be the direct obligation of the applicable issuer or issuers, may be secured or unsecured and may constitute senior or subordinated indebtedness. Any indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended. The statements made in this prospectus relating to any indenture and the debt securities to be issued under the indentures are summaries of certain anticipated provisions of the indentures and are not complete.
We have summarized selected provisions of the indentures below. The summary is not complete. We have also filed the forms of indentures as exhibits to the registration statement of which this prospectus is a part. You should read the indentures for provisions that may be important to you before you buy any debt securities. We will file any indentures and supplemental indentures with the SEC if we issue any debt securities.
General
The issuers may issue debt securities that rank "senior" or "subordinated." The debt securities that we refer to as "senior" will be the direct obligations of the applicable issuer or issuers and will rank equally and ratably in right of payment with such issuers' other indebtedness that is not subordinated. The issuers may issue debt securities that will be subordinated in right of payment to the prior payment in full of senior debt, as defined in the applicable prospectus supplement, and may rank equally and ratably with the other subordinated indebtedness. We refer to these as "senior subordinated" securities. We have filed with the registration statement of which this prospectus is part two separate forms of indenture, one for the senior securities and one for the subordinated securities.
The issuers may issue the debt securities without limit as to aggregate principal amount, in one or more series, in each case as we establish in one or more supplemental indentures. The issuers need not issue all debt securities of one series at the same time. Unless the applicable issuer or issuers otherwise provide, they may reopen a series, without the consent of the holders of the series, for issuances of additional securities of that series.
We anticipate that any indenture will provide that the applicable issuer or issuers may, but need not, designate more than one trustee under an indenture, each with respect to one or more series of debt securities.
Any trustee under any indenture may resign or be removed with respect to one or more series of debt securities, and the applicable issuer or issuers may appoint a successor trustee to act with respect to that series.
The applicable prospectus supplement will describe the specific terms relating to the series of debt securities the applicable issuer or issuers will offer, including, where applicable, the following:
. the title and series designation and whether they are senior securities or subordinated securities;
. the aggregate principal amount of the securities;
. the percentage of the principal amount at which the applicable issuer or issuers will issue the debt securities and, if other than the principal amount of the debt securities, the portion of the principal amount of the debt securities payable upon maturity of the debt securities;
. if convertible, the initial conversion price, the conversion period and any other terms governing such conversion;
. the stated maturity date;
. any fixed or variable interest rate or rates per annum;
. the place where principal, premium, if any, and interest will be payable and where the debt securities can be surrendered for transfer, exchange or conversion;
. the date from which interest may accrue and any interest payment dates;
. any sinking fund requirements;
. any provisions for redemption, including the redemption price and any remarketing arrangements;
. whether the securities are denominated or payable in United States dollars or a foreign currency or units of two or more foreign currencies;
. the events of default and covenants of such securities, including the required conditions to our ability to merge or consolidate or sell substantially all of our assets, to the extent different from or in addition to those described in this prospectus;
. whether the applicable issuer or issuers will issue the debt securities in certificated or book-entry form;
. whether the debt securities will be in registered or bearer form and, if in registered form, the denominations if other than in even multiples of $1,000 and, if in bearer form, the denominations and terms and conditions relating thereto;
. whether the applicable issuer or issuers will issue any of the debt securities in permanent global form and, if so, the terms and conditions, if any, upon which interests in the global security may be exchanged, in whole or in part, for the individual debt securities represented by the global security;
. the applicability, if any, of the defeasance and covenant defeasance provisions described in this prospectus or any prospectus supplement;
. whether the applicable issuer or issuers will pay additional amounts on the securities in respect of any tax, assessment or governmental charge and, if so, whether they will have the option to redeem the debt securities instead of making this payment;
. the subordination provisions, if any, relating to the debt securities;
. if the debt securities are to be issued upon the exercise of debt warrants, the time, manner and place for them to be authenticated and delivered;
. whether any of our subsidiaries will be bound by the terms of the indenture, in particular any restrictive covenants;
. the provisions relating to any security provided for the debt securities; and
. the provisions relating to any guarantee of the debt securities.
The issuers may issue debt securities at less than the principal amount payable at maturity. We refer to these securities as "original issue discount" securities. If material or applicable, we will describe in the applicable prospectus supplement special U.S. federal income tax, accounting and other considerations applicable to original issue discount securities.
Except as may be described in any prospectus supplement, an indenture will not contain any other provisions that would limit the ability of the applicable issuer or issuers to incur indebtedness or that would afford holders of the debt securities protection in the event of a highly leveraged or similar transaction involving us or an issuer or in the event of a change of control. You should review carefully the applicable prospectus supplement for information with respect to events of default and covenants applicable to the securities being offered.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the applicable issuer or issuers will issue the debt securities of any series that are registered securities in denominations that are even multiples of $1,000, other than global securities, which may be of any denomination.
Unless otherwise specified in the applicable prospectus supplement, the applicable issuer or issuers will pay the interest, principal and any premium at the corporate trust office of the trustee. At the option of the applicable issuer or issuers, however, the applicable issuer or issuers may make payment of interest by check mailed to the address of the person entitled to the payment as it appears in the applicable register or by wire transfer of funds to that person at an account maintained within the United States.
If the applicable issuer or issuers do not punctually pay or otherwise provide for interest on any interest payment date, the defaulted interest will be paid either:
. to the person in whose name the debt security is registered at the close of business on a special record date the trustee or the applicable issuer or issuers will fix; or
. in any other lawful manner, all as the applicable indenture describes.
You may have your debt securities divided into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, so long as the total principal amount is not changed. We call this an "exchange."
You may exchange or transfer debt securities at the office of the applicable trustee. The trustee acts as the agent of the issuers for registering debt securities in the names of holders and transferring debt securities. The issuers may change this appointment to another entity or perform it themselves. The entity performing the role of maintaining the list of registered holders is called the "registrar." It will also perform transfers.
You will not be required to pay a service charge to transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The security registrar will make the transfer or exchange only if it is satisfied with your proof of ownership.
Guarantees
Unless otherwise described in the applicable prospectus supplement, the debt securities issued by Ventas Realty and Ventas Capital will be fully and unconditionally guaranteed by us, Ventas LLC and certain other future subsidiaries of ours. These guarantees will be joint and several obligations of the guarantors. If a series of debt securities is so guaranteed, an indenture, or a supplemental indenture thereto, will be executed by the guarantor. The obligations of each guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under applicable law. The terms of any guarantee will be set forth in the applicable prospectus supplement.
Merger, Consolidation or Sale of Assets
Under any indenture, we are generally permitted to consolidate or merge with another company. We are also permitted to sell substantially all of our assets to another company, or to buy substantially all of the assets of another company. However, we may not take any of these actions unless the following conditions are met:
. If we merge out of existence or sell our assets, the other company must be an entity organized under the laws of a State or the District of Columbia or under federal law and must agree to be legally responsible for our obligations under the debt securities; and
. Immediately after the merger, sale of assets or other transaction, the applicable issuer or issuers may not be in default on the debt securities. A default for this purpose would include any event that would be an event of default if the requirements for giving the applicable issuer or issuers the default notice or the requirement that the default exist for a specific period of time were disregarded.
Certain Covenants
Existence. Except as permitted as described above under "--Merger, Consolidation or Sale of Assets," we and certain of our subsidiaries will agree to do all things necessary to preserve and keep our corporate existence, rights and franchises; provided, however, that we may terminate the existence of any such subsidiary if we determine that it is in our best interests to do so.
Provisions of Financial Information. Whether or not we remain required to do so under the Securities Exchange Act of 1934, as amended, to the extent permitted by law, we will agree to file all annual, quarterly and other reports and financial statements with the SEC and an indenture trustee on or before the applicable SEC filing dates as if we were required to do so.
Events of Default and Related Matters
Events of Default. The term "event of default" for any series of debt securities means any of the following:
. The applicable issuer or issuers do not pay the principal or any premium on a debt security of that series;
. The applicable issuer or issuers do not pay interest on a debt security of that series within 30 days after its due date;
. The applicable issuer or issuers do not deposit any sinking fund payment for that series within 30 days after its due date;
. The applicable issuer or issuers remain in breach of any other term of the applicable indenture (other than a term added to the indenture solely for the benefit of other series) for 60 days after we receive a notice of default stating we are in breach. Either the trustee or holders of more than 25% in principal amount of debt securities of the affected series may send the notice;
. The applicable issuer or issuers default under any of our other indebtedness in an aggregate principal amount exceeding $15,000,000 after the expiration of any applicable grace period, which default results in the acceleration of the maturity of such indebtedness. Such default is not an event of default if the other indebtedness is discharged, or the acceleration is rescinded or annulled, within a period of 10 days after the applicable issuer or issuers receive notice specifying the default and requiring that the applicable issuer or issuers discharge the other indebtedness or cause the acceleration to be rescinded or annulled. Either the trustee or the holders of more than 25% in principal amount of debt securities of the affected series may send the notice;
. We or one of our "significant subsidiaries," files for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur; or
. Any other event of default described in the applicable prospectus supplement occurs.
The term "significant subsidiary" means each of our significant subsidiaries, if any, as defined in Regulation S-X under the Securities Act of 1933, as amended.
Remedies if an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of at least 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. If an event of default occurs because of certain events in bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of that series will be automatically accelerated, without any action by the trustee or any holder. At any time after the trustee or the holders have accelerated any series of debt securities, but before a judgment or decree for payment of the money due has been obtained, the holders of at least a majority in principal amount of the debt securities of the affected series may, under certain circumstances, rescind and annul such acceleration.
The trustee will be required to give notice to the holders of debt securities within 90 days after a default under the applicable indenture unless the default has been cured or waived. The trustee may withhold notice to the holders of any series of debt securities of any default with respect to that series, except a default in the payment of the principal of or interest on any debt security of that series, if specified responsible officers of the trustee in good faith determine that withholding the notice is in the interest of the holders.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability. We refer to this as an "indemnity." If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the applicable indenture, subject to certain limitations.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
. you must give the trustee written notice that an event of default has occurred and remains uncured;
. the holders of at least a majority in principal amount of all outstanding securities of the relevant series must make a written request that the trustee take action because of the default, and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action;
. the trustee must have not taken action for 60 days after receipt of the notice and offer of indemnity; and
. the holders of at least a majority in principal amount of all outstanding securities of the relevant series must not have given the trustee a direction inconsistent within such request within such 60-day period.
However, you are entitled at any time to bring a lawsuit for the payment of money due on your security after its due date.
Every year we will furnish to the trustee a written statement by certain of our officers certifying that to their knowledge we are in compliance with the applicable indenture and the debt securities, or otherwise specifying any default.
Modification of an Indenture
There are three types of changes the issuers can make to the indentures and the debt securities:
Changes Requiring Your Approval. First, there are changes the issuers cannot make to your debt securities without your specific approval. The following is a list of those types of changes:
. change the stated maturity of the principal or interest on a debt security (which does not include the making of mandatory offers to purchase the debt security);
. reduce any amounts due on a debt security;
. reduce the amount of principal payable upon acceleration of the maturity of a debt security following a default;
. change the currency of payment on a debt security;
. impair your right to sue for payment;
. modify the subordination provisions, if any, in a manner that is adverse to you;
. reduce the percentage of holders of debt securities whose consent is needed to modify or amend an indenture or to waive compliance with certain provisions of an indenture;
. reduce the percentage of holders of debt securities whose consent is needed to waive past defaults or change certain provisions of the indenture relating to waivers of default;
. waive a default or event of default in the payment of principal of or premium, if any, or interest on the debt securities (other than a default arising as a result of the acceleration of the debt security which has since been rescinded);
. release any guarantor from any of its obligations under its guarantee or an indenture, except in accordance with the terms of such indenture; or
. modify any of the foregoing provisions.
Changes Requiring a Majority Vote. The second type of change to an indenture and the debt securities issued under that indenture is the kind that requires a vote in favor by holders of debt securities owning a majority of the principal amount of the particular series affected. Most changes fall into this category, except for clarifying changes and certain other changes that would not materially adversely affect holders of the debt securities. The issuer or applicable issuers require the same vote to obtain a waiver of a past default. However, the issuers cannot obtain a waiver of a payment default or any other aspect of an indenture or the debt securities listed in the first category described above under "--Changes Requiring Your Approval" unless they obtain your individual consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. This type is limited to clarifications and certain other changes that would not materially adversely affect holders of the debt securities.
Further Details Concerning Voting. Debt securities are not considered outstanding, and holders of debt securities may not be able to vote, if the issuer or applicable issuers have deposited or set aside in trust for you money for their payment or redemption or if we or one of our affiliates own them. The holders of debt securities are also not eligible to vote if the securities have been discharged or fully defeased as described immediately below under "--Discharge, Defeasance and Covenant Defeasance--Full Defeasance." For original issue discount securities, the issuer or applicable issuers will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default.
Discharge, Defeasance and Covenant Defeasance
Discharge. The issuers may discharge some obligations to holders of any series of debt securities that either have become due and payable or will become due and payable within one year, or scheduled for redemption within one year, by irrevocably depositing with the trustee, in trust, funds in the applicable currency in an amount sufficient to pay the debt securities, including any premium and interest thereon.
Full Defeasance. The applicable issuer or issuers can, under particular circumstances, effect a full defeasance of your series of debt securities. By this we mean such issuer or issuers can legally release themselves
from any payment or other obligations on the debt securities if, among other things, they put in place the arrangements described below to repay you and deliver certain certificates and opinions to the trustee:
. The applicable issuer or issuers must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money or U.S. government or U.S. government agency notes or bonds (or, in some circumstances, depositary receipts representing these notes or bonds) that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
. The current federal tax law must be changed or an IRS ruling must be issued permitting the above deposit without causing you to be taxed on the debt securities any differently than if such issuer or issuers did not make the deposit and just repaid the debt securities themselves. Under current federal income tax law, the deposit and the legal release of such issuer or issuers from the debt securities would be treated as though they took back your debt securities and gave you your share of the cash and notes or bonds deposited in trust. In that event, you could recognize gain or loss on the debt securities you give back to them; and
. The applicable issuer or issuers must deliver to the trustee a legal opinion confirming the tax law change described above.
If the applicable issuer or issuers did accomplish full defeasance, you would have to rely solely on the trust deposit for repayment on the debt securities. You could not look to such issuer or issuers or any guarantor for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of the lenders of such issuer or issuers and other creditors if they ever became bankrupt or insolvent. You would also be released from any subordination provisions.
Covenant Defeasance. Under current federal income tax law, the applicable issuer or issuers can make the same type of deposit described above and be released from some of the restrictive covenants in the debt securities. This is called "covenant defeasance." In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the securities and you would be released from any subordination provisions.
If such issuer or issuers accomplish covenant defeasance, the following provisions of an indenture and the debt securities would no longer apply:
. any covenants applicable to the series of debt securities and described in the applicable prospectus supplement;
. any subordination provisions; and
. certain events of default relating to breach of covenants and acceleration of the maturity of other debt set forth in any prospectus supplement.
If such issuer or issuers accomplish covenant defeasance, you can still look to them for repayment of the debt securities if a shortfall in the trust deposit occurred. If one of the remaining events of default occurs, for example, the bankruptcy of such issuer or issuers, and the debt securities become immediately due and payable, there may be a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
Subordination
We will describe in the applicable prospectus supplement the terms and conditions, if any, upon which any series of subordinated securities is subordinated to debt securities of another series or to our other indebtedness. The terms will include a description of:
. the indebtedness ranking senior to the debt securities being offered;
. the restrictions, if any, on payments to the holders of the debt securities being offered while a default with respect to the senior indebtedness is continuing;
. the restrictions, if any, on payments to the holders of the debt securities being offered following an event of default; and
. provisions requiring holders of the debt securities being offered to remit some payments to holders of senior indebtedness.
Global Securities
If so set forth in the applicable prospectus supplement, the applicable issuer or issuers may issue the debt securities of a series in whole or in part in the form of one or more global securities that will be deposited with a depositary identified in the prospectus supplement. The issuers may issue global securities in either registered or bearer form and in either temporary or permanent form. The specific terms of the depositary arrangement with respect to any series of debt securities will be described in the prospectus supplement.
DESCRIPTION OF COMMON STOCK
We may issue, either separately or together with other securities, shares of our common stock. Under our Certificate of Incorporation, we are authorized to issue up to 180,000,000 shares of common stock. A prospectus supplement relating to an offering of common stock, or other securities convertible or exchangeable for, or exercisable into, common stock, will describe the relevant terms, including the number of shares offered, any initial offering price, and market price and dividend information, as well as, if applicable, information on other related securities. See "Description of Outstanding Capital Stock" below.
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of our preferred stock. The applicable prospectus supplement will describe the specific terms of the preferred stock offered through that prospectus supplement as well as any general terms described in this section that will not apply to those shares of preferred stock.
We have summarized certain selected terms of the preferred stock in this section. The summary is not complete. You should read our Certificate of Incorporation that is an exhibit to our annual report on Form 10-K and the certificate of designation relating to the applicable series of the preferred stock that we will file with the SEC for additional information before you buy any shares of preferred stock.
General
Our board of directors will determine the designations, preferences, limitations and relative rights of each series of our authorized and unissued preferred stock. These may include:
. the distinctive designation of each series and the number of shares that will constitute the series;
. the voting rights, if any, of shares of the series;
. the dividend rate on the shares of the series, any restriction, limitation or condition upon the payment of the dividend, whether dividends will be cumulative, and the dates on which dividends are payable;
. the prices at which, and the terms and conditions on which, the shares of the series may be redeemed, if the shares are redeemable;
. the purchase or sinking fund provisions, if any, for the purchase or redemption of shares of the series;
. any preferential amount payable upon shares of the series upon our liquidation or the distribution of our assets; and
. if the shares are convertible or exchangeable, the price or rates of conversion or exchange at which, and the terms and conditions on which, the shares of the series may be converted into or exchanged for other securities.
The issuance of shares of preferred stock, or the issuance of rights to purchase shares of preferred stock, could discourage an unsolicited acquisition proposal. In addition, the rights of holders of shares of common stock will be subject to, and may be adversely affected by, the rights of holders of any shares of preferred stock that we may issue in the future.
The preferred stock will have the rights described in this section unless the applicable prospectus supplement provides otherwise. You should read the prospectus supplement relating to the particular series of the preferred stock it offers for specific terms, including:
. the description of the shares of preferred stock;
. the number of shares of preferred stock offered;
. the voting rights, if any, of the holders of the shares of preferred stock;
. the offering price of the shares of preferred stock;
. the distribution rate, when distributions will be paid, or the method of determining the distribution rate if it is based on a formula or not otherwise fixed;
. the date from which distributions on the shares of preferred stock shall accumulate;
. the provisions for any auctioning or remarketing, if any, of the shares of preferred stock;
. the provision, if any, for redemption or a sinking fund;
. the liquidation preference per share;
. any listing of the shares of preferred stock on a securities exchange;
. whether the shares of preferred stock will be convertible or exchangeable and, if so, the security into which they are convertible or exchangeable and the terms and conditions of conversion or exchange, including the conversion price or exchange rate or the manner of determining it;
. whether interests in the shares of preferred stock will be represented by depositary shares as more fully described below under "Description of Depositary Shares;"
. a discussion of federal income tax considerations;
. the relative ranking and preferences of the shares of preferred stock as to distribution and liquidation rights;
. any limitations on issuance of any shares of preferred stock ranking senior to or on a parity with the series of preferred stock being offered as to distribution and liquidation rights;
. any limitations on direct or beneficial ownership and restrictions on transfer, in each case as may be appropriate to preserve our status as a REIT; and
. any other specific terms, preferences, rights, limitations or restrictions of the shares of preferred stock.
As described under "Description of Depositary Shares," we may, at our option, elect to offer depositary shares evidenced by depositary receipts. If we elect to do this, each depositary receipt will represent a fractional interest in a share of the particular series of preferred stock issued and deposited with a depositary. The applicable prospectus supplement will specify that fractional interest.
Rank
Unless our board of directors otherwise determines and we so specify in the applicable prospectus supplement, we expect that the shares of preferred stock will, with respect to distribution rights and rights upon liquidation or dissolution, rank senior to all our shares of common stock.
Dividends
Holders of shares of preferred stock of each series will be entitled to receive cash and/or share dividends at the rates and on the dates shown in the applicable prospectus supplement. Even though the preferred stock may specify a fixed rate of distribution, our board of directors must authorize and declare those dividends and they may be paid only out of assets legally available for payment. We will pay each dividend to holders of record as they appear on our share transfer books on the record dates fixed by our board of directors. In the case of shares of preferred stock represented by depositary receipts, the records of the depositary referred to under "Description of Depositary Shares" will determine the persons to whom dividends are payable.
Dividends on any series of preferred stock may be cumulative or noncumulative, as provided in the applicable prospectus supplement. We refer to each particular series, for ease of reference, as the applicable series. Cumulative dividends will be cumulative from and after the date shown in the applicable prospectus supplement. If our board of directors fails to authorize a dividend on any applicable series that is noncumulative, the holders will have no right to receive, and we will have no obligation to pay, a dividend in respect of the applicable dividend period, whether or not dividends on that series are declared payable in the future.
If the applicable series is entitled to a cumulative dividend, we may not declare, or pay or set aside for payment, a dividend on any other series of preferred stock ranking, as to dividends on a parity with or junior to the applicable series, unless we declare, and either pay or set aside for payment, full cumulative dividends on the applicable series for all past dividends periods and the then current dividend period. If the applicable series does not have a cumulative dividend, we must declare, and pay or set aside for payment, full dividends for the then current dividend period only. When dividends are not paid, or set aside for payment, in full on any applicable series and the shares of any other series ranking on a parity as to dividends with the applicable series, we must declare, and pay or set aside for payment, all dividends upon the applicable series and any other parity series proportionately, in accordance with accrued and unpaid dividends of the several series. For these purposes, accrued and unpaid dividends do not include unpaid dividend periods on noncumulative shares of preferred stock. No interest will be payable in respect of any dividend payment that may be in arrears.
Except as provided in the immediately preceding paragraph, unless we declare, and pay or set aside for payment, full cumulative dividends, including for the then current period, on any cumulative applicable series, we may not declare, or pay or set aside for payment, any dividends on common stock or any other equity securities ranking junior to or on a parity with the applicable series as to dividends or upon liquidation. The foregoing restriction does not apply to dividends paid in common stock or other equity securities ranking junior to the applicable series as to dividends and upon liquidation. If the applicable series is noncumulative, we need only declare, and pay or set aside for payment, the dividend for the then current period, before declaring dividends on shares of common stock or junior or parity securities. In addition, under the circumstances in which we could not declare a dividend, we may not redeem, purchase or otherwise acquire for any consideration any shares of common stock or other parity or junior equity securities, except upon conversion into or exchange for shares of common stock or other junior equity securities. We may, however, make purchases and redemptions otherwise prohibited pursuant to certain redemptions or pro rata offers to purchase the outstanding shares of the applicable series and any other parity series of preferred stock.
We will credit any dividend payment made on an applicable series first against the earliest accrued but unpaid dividend due with respect to the series.
Redemption
We may have the right or may be required to redeem one or more series of preferred stock, as a whole or in part, in each case upon the terms, if any, and at the times and at the redemption prices shown in the applicable prospectus supplement.
If a series of preferred stock is subject to mandatory redemption, we will specify in the applicable prospectus supplement the number of shares we are required to redeem, when those redemptions start, the
redemption price, and any other terms and conditions affecting the redemption. The redemption price will include all accrued and unpaid dividends, except in the case of noncumulative preferred stock. The redemption price may be payable in cash or other property, as specified in the applicable prospectus supplement. If the redemption price for preferred stock of any series is payable only from the net proceeds of our issuance of capital stock, the terms of the preferred stock may provide that, if no shares of capital stock shall have been issued or to the extent the net proceeds from any issuance are insufficient to pay in full the aggregate redemption price then due, the shares of preferred stock will automatically and mandatorily be converted into shares of capital stock pursuant to conversion provisions specified in the applicable prospectus supplement.
Liquidation Preference
The applicable prospectus supplement will describe the liquidation preference of the applicable series. Upon our voluntary or involuntary liquidation, before any distribution may be made to the holders of shares of our common stock or any other shares of capital stock ranking junior to the applicable series, in the distribution of assets upon any liquidation the holders of that series will be entitled to receive, out of our assets legally available for distribution to shareholders, liquidating distributions in the amount of the liquidation preference, plus an amount equal to all distributions accrued and unpaid. In the case of a noncumulative applicable series, accrued and unpaid dividends include only the then current dividend period. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of shares of preferred stock will have no right or claim to any of our remaining assets. If liquidating distributions shall have been made in full to all holders of shares of preferred stock, our remaining assets will be distributed among the holders of any other shares of capital stock ranking junior to the preferred stock upon liquidation, according to their rights and preferences.
If, upon any voluntary or involuntary liquidation, our available assets are insufficient to pay the amount of the liquidating distributions on all outstanding shares of any series and the corresponding amounts payable on all shares of capital stock ranking on a parity in the distribution of assets with that series, then the holders of that series and all other equally ranking shares of capital stock shall share ratably in the distribution in proportion to the full liquidating distributions to which they would otherwise be entitled.
Voting Rights
Holders of shares of preferred stock will not have any voting rights, except as otherwise from time to time required by law or as specified in the applicable prospectus supplement.
As more fully described under "Description of Depositary Shares" below, if we elect to issue depositary shares, each representing a fraction of a share of a series of preferred stock, each depositary will in effect be entitled to a fraction of a vote per depositary share.
Conversion Rights
We will describe in the applicable prospectus supplement the terms and conditions, if any, upon which you may, or we may require you to, convert shares of any series of preferred stock into shares of common stock or any other class or series of shares of capital stock. The terms will include the number of shares of common stock or other securities into which the shares of preferred stock are convertible, the conversion price (or the manner of determining it), the conversion period, provisions as to whether conversion will be at the option of the holders of the series or at our option, the events requiring an adjustment of the conversion price, and provisions affecting conversion upon the redemption of shares of the series.
Our Exchange Rights
We will describe in the applicable prospectus supplement the terms and conditions, if any, upon which we can require you to exchange shares of any series of preferred stock for debt securities. If an exchange is required,
you will receive debt securities with a principal amount equal to the liquidation preference of the applicable series of preferred stock. The other terms and provisions of the debt securities will not be materially less favorable to you than those of the series of preferred stock being exchanged.
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
The summary of the terms of our outstanding common stock set forth below does not purport to be complete and is subject to and qualified in its entirety by reference to our Certificate of Incorporation, as amended from time to time, and our Third Amended and Restated Bylaws, as amended and/or restated from time to time, each of which is incorporated herein by reference. You should read our Certificate of Incorporation and our Third Amended and Restated Bylaws for additional information before you purchase any of our capital stock.
Our Certificate of Incorporation provides that we may issue up to 190,000,000 shares of stock, consisting of 180,000,000 shares of common stock and 10,000,000 shares of preferred stock. As of May 31, 2002, 69,077,781 shares of common stock and no shares of preferred stock were issued and outstanding.
All shares of common stock offered hereby will be duly authorized, fully paid and nonassessable. Subject to the preferential rights of any other shares of capital stock and to certain provisions of our Certificate of Incorporation, holders of shares of common stock are entitled to receive distributions if, as and when authorized and declared by the Board of Directors out of assets legally available therefor and to share ratably in our assets legally available for distribution to our stockholders in the event of our liquidation, dissolution or winding-up after payment of, or adequate provision for, all of our known debts and liabilities. We currently expect to make quarterly distributions, and from time to time we may make additional distributions.
Holders of shares of common stock have no conversion, sinking fund, redemption or preemptive rights to subscribe for any of our securities. Subject to certain provisions of our Certificate of Incorporation, shares of common stock have equal distribution, liquidation and other rights.
In order to preserve our ability to maintain REIT status, our Certificate of Incorporation provides that if a person acquires beneficial ownership of greater than 9% of our outstanding stock, the shares that are beneficially owned in excess of such 9% limit are considered to be "excess shares." Excess shares are automatically deemed transferred to a trust for the benefit of a charitable institution or other qualifying organization selected by our Board of Directors. The trust is entitled to all dividends with respect to the excess shares and the trustee may exercise all voting power over the excess shares. We have the right to buy the excess shares for a purchase price equal to the lesser of (1) the price per share in the transaction that created the shares, or (2) the market price on the date we buy the shares. We may defer payment of the purchase price for the excess shares for up to five years. If we do not purchase the excess shares, the trustee of the trust is required to transfer the excess shares at the direction of the Board of Directors. The owner of the excess shares is entitled to receive the lesser of the proceeds from the sale of the excess shares or the original price for such excess shares; any additional amounts are payable to the beneficiary of the trust. Certain holders who owned common stock in excess of the foregoing limits on the date of the 1998 Spin Off, are not subject to the general ownership limits applicable to other stockholders. Such holders are generally permitted to own up to the same percentage of common stock that was owned on the date of the 1998 Spin Off, provided such ownership does not jeopardize our status as a REIT. The Board of Directors may grant waivers from the excess share limitations.
We have issued Preferred Stock Purchase Rights (the "Rights") under a Rights Agreement, dated July 20, 1993, as amended, with National City Bank as the Rights Agent. The Rights have certain anti-takeover effects and are intended to cause substantial dilution to a person or group that attempts to acquire us without the approval of our Board of Directors. For more information on the Rights, see Note 13 of the Notes to the Consolidated Financial Statements incorporated by reference in our Annual Report on Form 10-K for the year ended December 31, 2001.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general germs and provisions of shares of preferred stock represented by depositary shares. The applicable prospectus supplement will describe the specific terms of the depositary shares offered through that prospectus supplement and any general terms outlined in this section that will not apply to those depositary shares.
We have summarized in this section certain terms and provisions of the deposit agreement, the depositary shares and the receipts representing depositary shares. The summary is not complete. You should read the forms of deposit agreement and depositary receipt that we will file with the SEC at or before the time of the offering of the depositary shares for additional information before you buy any depositary shares.
General
We may, at our option, elect to offer fractional interests in shares of preferred, rather than shares of preferred stock. If we exercise this option, we will appoint a depositary to issue depositary receipts representing those fractional interests. Shares of preferred stock of each series represented by depositary shares will be deposited under a separate deposit agreement between us and the depositary. The prospectus supplement relating to a series of depositary shares will provide the name and address of the depositary. Subject to the terms of the applicable deposit agreement, each owner of depositary shares will be entitled to all of the dividend, voting, conversion, redemption, liquidation and other rights and preferences of the shares of preferred stock represented by those depositary shares.
Depositary receipts issued pursuant to the applicable deposit agreement will evidence ownership of depositary shares. Upon surrender of depositary receipts at the office of the depositary, and upon payment of the charges provided in and subject to the terms of the deposit agreement, a holder of depositary shares will be entitled to receive the shares of preferred stock underlying the surrendered depositary receipts.
Dividends and Other Distributions
A depositary will be required to distribute all dividends or other cash distributions received in respect of the applicable shares of preferred stock to the record holders of depositary receipts evidencing the related depositary shares in proportion to the number of depositary receipts owned by the holders. Fractions will be rounded down to the nearest whole cent.
If the distribution is other than in cash, a depositary will be required to distribute property received by it to the record holders of depositary receipts entitled thereto, unless the depositary determines that it is not feasible to make the distribution. In that case, the depositary may, with our approval, sell the property and distribute the net proceeds from the sale to the holders of depositary shares.
Depositary shares that represent shares of preferred stock converted or exchanged will not be entitled to distributions. The deposit agreement will also contain provisions relating to the manner in which any subscription or similar rights we offer to holders of shares of preferred stock will be made available to holders of depositary shares. All distributions will be subject to obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the depositary.
Withdrawal of Shares of Preferred Stock
You may receive the number of whole shares of your series of preferred stock and any money or other property represented by your depositary receipts after surrendering your depositary receipts at the corporate trust office of the depositary. Partial shares of preferred stock will not be issued. If the depositary shares that you surrender exceed the number of depositary shares that represent the number of whole shares of preferred stock
you wish to withdraw, then the depositary will deliver to you at the same time a new depositary receipt evidencing the excess number of depositary shares. Once you have withdrawn your shares of preferred stock, you will not be entitled to re-deposit those shares of preferred stock under the deposit agreement in order to receive depositary shares. We do not expect that there will be any public trading market for withdrawn shares of preferred stock.
Redemption of Depositary Shares
If we redeem a series of the preferred stock underlying the depositary shares, the depositary will redeem those shares from the proceeds it receives. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share payable with respect to the series of the preferred stock. The redemption date for depositary shares will be the same as that of the preferred stock. If we are redeeming less than all of the depositary shares, the depositary will select the depositary shares we are redeeming by lot or pro rata as the depositary may determine.
After the date fixed for redemption, the depositary shares called for redemption will no longer be deemed outstanding. All rights of the holders of the depositary shares and the related depositary receipts will cease at that time, except the right to receive the money or other property to which the holders of depositary shares were entitled upon redemption. Receipt of the money or other property is subject to surrender to the depositary of the depositary receipts evidencing the redeemed depositary shares.
Voting of the Underlying Shares of Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, a depositary will be required to mail the information contained in the notice of meeting to the record holders of the depositary shares representing such preferred stock. Each record holder of depositary receipts on the record date will be entitled to instruct the depositary as to how the holder's depositary shares will be voted. The record date for the depositary shares will be the same as the record date for the preferred stock. The depositary will vote the shares as you instruct. We will agree to take all reasonable action that the depositary deems necessary in order to enable it to vote the preferred stock in that manner. If you do not instruct the depositary how to vote your shares, the depositary will abstain from voting those shares. The depositary will not be responsible for any failure to carry out any voting instruction, or for the manner or effect of any vote, as long as its action or inaction is in good faith and does not result from its negligence or willful misconduct.
Liquidation Preference
Upon our liquidation, whether voluntary or involuntary, each holder of depositary shares will be entitled to the fraction of the liquidation preference accorded each share of preferred stock represented by the depositary shares, as described in the applicable prospectus supplement.
Conversion or Exchange of Shares of Preferred Stock
The depositary shares will not themselves be convertible into or exchangeable for shares of common stock or preferred stock or any of our other securities or property. Nevertheless, if so specified in the applicable prospectus supplement, the depositary receipts may be surrendered by holders to the applicable depositary with written instructions to it to instruct us to cause the conversion of the preferred stock represented by the depositary shares. Similarly, if so specified in the applicable prospectus supplement, we may require you to surrender all of your depositary receipts to the applicable depositary upon our requiring the conversion or exchange of the preferred stock represented by the depositary shares into our debt securities. We will agree that, upon receipt of the instruction and any amounts payable in connection with the conversion or exchange, we will cause the conversion or exchange using the same procedures as those provided for delivery of shares of preferred stock to effect the conversion or exchange. If you are converting only a part of the depositary shares, the depositary will issue you a new depositary receipt for any unconverted depositary shares.
Taxation
As owner of depositary shares, you will be treated for U.S. federal income tax purposes as if you were an owner of the series of preferred stock represented by the depositary shares. Therefore, you will be required to take into account for U.S. federal income tax purposes income and deductions to which you would be entitled if you were a holder of the underlying series of preferred stock. In addition:
. no gain or loss will be recognized for U.S. federal income tax purposes upon the withdrawal of shares of preferred stock in exchange for depositary shares provided in the deposit agreement;
. the tax basis of each share of preferred stock to you as exchanging owner of depositary shares will, upon exchange, be the same as the aggregate tax basis of the depositary shares exchanged for shares of preferred stock; and
. if you held the depositary shares as a capital asset at the time of the exchange for shares of preferred stock, the holding period for shares of the preferred stock will include the period during which you owned the depositary shares.
Amendment and Termination of a Deposit Agreement
We and the applicable depositary are permitted to amend the provisions of the depositary receipts and the deposit agreement. However, the holders of at least a majority of the applicable depositary shares then outstanding must approve any amendment that adds or increases fees or charges or prejudices an important right of holders. Every holder of an outstanding depositary receipt at the time any amendment becomes effective will be bound by the applicable deposit agreement, as amended.
Any deposit agreement may be terminated by us upon not less than 30 days' prior written notice to the applicable depositary if (1) the termination is necessary to preserve our status as a REIT or (2) a majority of each series of preferred stock affected by the termination consents to the termination. When either event occurs, the depositary will be required to deliver or make available to each holder of depositary receipts, upon surrender of the depositary receipts held by the holder, the number of whole or fractional shares of preferred stock as are represented by the depositary shares evidenced by the depositary receipts, together with any other property held by the depositary with respect to the depositary receipts. In addition, a deposit agreement will automatically terminate if:
. all depositary shares have been redeemed;
. there shall have been a final distribution in respect of the related preferred stock in connection with our liquidation and the distribution has been made to the holders of depositary receipts evidencing the depositary shares underlying the preferred stock; or
. each related share of preferred stock shall have been converted or exchanged into securities not represented by depositary shares.
Charges of a Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of a deposit agreement. In addition, we will pay the fees and expenses of a depositary in connection with the initial deposit of the preferred stock and any redemption of preferred stock. However, holders of depositary receipts will pay any transfer or other governmental charges and the fees and expenses of a depositary for any duties the holders request to be performed that are outside of those expressly provided for in the applicable deposit agreement.
Resignation and Removal of Depositary
A depositary may resign at any time by delivering to us notice of its election to do so. In addition, we may at any time remove a depositary. Any resignation or removal will take effect when we appoint a successor
depositary and it accepts the appointment. We must appoint a successor depositary within 60 days after delivery of the notice of resignation or removal. A depositary must be a bank or trust company having its principal office in the United States that has a combined capital and surplus of at least $50 million.
Miscellaneous
A depositary will be required to forward to holders of depositary receipts any reports and communications from us that it receives with respect to the related shares of preferred stock. Holders of depository receipts will be able to inspect the transfer books of the depository and the list of holders of receipts upon reasonable notice.
Neither a depositary nor our company will be liable if it is prevented from or delayed in performing its obligations under a deposit agreement by law or any circumstances beyond its control. Our obligations and those of the depositary under a deposit agreement will be limited to performing duties in good faith and without gross negligence or willful misconduct. Neither we nor any depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or related shares of preferred stock unless satisfactory indemnity is furnished. We and each depositary will be permitted to rely on written advice of counsel or accountants, on information provided by persons presenting shares of preferred stock for deposit, by holders of depositary receipts, or by other persons believed in good faith to be competent to give the information, and on documents believed in good faith to be genuine and signed by a proper party.
If a depositary receives conflicting claims, requests or instructions from any holder of depositary receipts, on the one hand, and us, on the other hand, the depositary shall be entitled to act on the claims, requests or instructions received from us.
DESCRIPTION OF WARRANTS
This section describes the general terms and provisions of the warrants. The applicable prospectus supplement will describe the specific terms of the warrants offered through that prospectus supplement and any general terms outlined in this section that will not apply to those warrants.
We have summarized in this section certain terms and provisions of the warrant agreement and the warrants. The summary is not complete. You should read the forms of warrant and warrant agreement that we will file with the SEC at or before the time of the offering of the applicable series of warrants for additional information before you buy any warrants.
We may issue, together with any other securities being offered or separately, warrants entitling the holder to purchase from or sell to us, or to receive from us the cash value of the right to purchase or sell, debt securities, preferred stock, depositary shares or common stock. We and a warrant agent will enter a warrant agreement pursuant to which the warrants will be issued. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
In the case of each series of warrants, the applicable prospectus supplement will describe the terms of the warrants being offered thereby. These include the following, if applicable:
. the offering price;
. the number of warrants offered;
. the securities underlying the warrants;
. the exercise price, the procedures for exercise of the warrants and the circumstances, if any, that will cause the warrants to be automatically exercised;
. the date on which the warrants will expire;
. federal income tax consequences;
. the rights, if any, we have to redeem the warrants;
. the name of the warrant agent; and
. the other terms of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or any other office indicated in the applicable prospectus supplement. Before the exercise of warrants, holders will not have any of the rights of holders of the securities underlying the warrants and will not be entitled to payments made to holders of those securities.
The warrant agreements may be amended or supplemented without the consent of the holders of the warrants to which the amendment or supplement applies to effect changes that are not inconsistent with the provisions of the warrants and that do not adversely affect the interests of the holders of the warrants. However, any amendment that materially and adversely alters the rights of the holders of warrants will not be effective unless the holders of at least a majority of the applicable warrants then outstanding approve the amendment. Every holder of an outstanding warrant at the time any amendment becomes effective, by continuing to hold the warrant, will be bound by the applicable warrant agreement, as amended thereby. The prospectus supplement applicable to a particular series of warrants may provide that certain provisions of the warrants, including the securities for which they may be exercisable, the exercise price, and the expiration date may not be altered without the consent of the holder of each warrant.
PLAN OF DISTRIBUTION
We, Ventas Realty, Ventas LLC and/or Ventas Capital may sell the offered securities in and outside the United States (a) through underwriters or dealers, (b) directly to purchasers, including to a limited number of institutional purchasers, to a single purchaser or to our affiliates and stockholders, (c) through agents or (d) through a combination of any of these methods. The prospectus supplement will include the following information:
. the terms of the offering;
. the names of any underwriters or agents;
. the name or names of any managing underwriter or underwriters;
. the purchase price or initial public offering price of the securities;
. the net proceeds from the sale of the securities;
. any delayed delivery arrangements;
. any underwriting discounts, commissions and other items constituting underwriters' compensation;
. any initial public offering price;
. any discounts or concessions allowed or reallowed or paid to dealers; and
. any commissions paid to agents.
Sale Through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
In order to facilitate the offering of securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically, the underwriters may over-allot in connection with the offering, creating a short position in the securities for their account. In addition, to cover over-allotments or to stabilize the price of the shares, the underwriters may bid for, and purchase, shares in the open market. Finally, an underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed shares in transactions to cover syndicate short positions, in stabilization transactions, or otherwise. Any of these activities may stabilize or maintain the market price of the offered securities above independent market levels. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
Some or all of the securities that we, Ventas Realty, Ventas LLC and/or Ventas Capital offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we, Ventas Realty, Ventas LLC and/or Ventas Capital sell securities for public offering and sale may make a market in those securities, but they will not be obligated to and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities offered pursuant to this prospectus.
If dealers are used in the sale of securities, we, Ventas Realty, Ventas LLC and/or Ventas Capital will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales Through Agents
We, Ventas Realty, Ventas LLC and/or Ventas Capital may sell the securities directly. In this case, no underwriters or agents would be involved. We, Ventas Realty, Ventas LLC and/or Ventas Capital may also sell the securities through agents designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We, Ventas Realty, Ventas LLC and/or Ventas Capital may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Remarketing Arrangements
Offered securities may also be offered and sold, if we so indicate in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters of the offered securities under the Securities Act of 1933.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we, Ventas Realty, Ventas LLC and/or Ventas Capital may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
General Information
We, Ventas Realty, Ventas LLC and/or Ventas Capital may have agreements with the agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform services for us, Ventas Realty, Ventas LLC and/or Ventas Capital in the ordinary course of their businesses.
Each underwriter, dealer and agent participating in the distribution of any of the securities that are issuable in bearer form will agree that it will not offer, sell or deliver, directly or indirectly, securities in bearer form in the United States or to United States persons, other than qualifying financial institutions, during the restricted period, as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7).
VALIDITY OF THE OFFERED SECURITIES
Willkie Farr & Gallagher, New York, New York will issue an opinion for us about the legality of the offered securities. Any underwriters will be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements (including the schedules incorporated by reference in such consolidated financial statements) of Ventas, Inc. at December 31, 2001 and 2000, and for each of the three years in the period ended December 31, 2001, incorporated by reference in this prospectus and the registration statement of which this prospectus is a part have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon, incorporated by reference herein. The financial statements referred to above are incorporated by reference in this prospectus and such registration statement in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. We have also filed with the SEC a registration statement on Form S-3 to register the securities being offered in this prospectus. This prospectus, which forms part of the registration statement, does not contain all of the information included in the registration statement. For further information about us, Ventas Realty, Ventas LLC and Ventas Capital and the securities offered in this prospectus, you should refer to the registration statement and its exhibits.
Our SEC filings are available on the SEC's Web site at www.sec.gov. You also may read and copy any documents we file at the SEC's public reference rooms in Washington, D.C. Please call the SEC at 1-800-SEC-0330 for further information about their public reference rooms, including copy charges. You can also obtain information about us from the New York Stock Exchange at 20 Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
We are incorporating by reference in the prospectus the information we file with the SEC. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We are incorporating by reference our documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of the initial registration statement of which this prospectus is a part and before the effective date of the registration statement or after the date of such initial registration statement until all of the securities offered under this prospectus are sold.
. Annual Report on Form 10-K for the fiscal year ended December 31, 2001;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 2002; and
. Current reports on Forms 8-K filed January 2, 2002, January 3, 2002, January 31, 2002, April 3, 2002, April 15, 2002, April 18, 2002, April 24, 2002, May 16, 2002, May 24, 2002 (other than with respect to the information reported under Item 9 of that report), June 5, 2002, June 19, 2002 and July 3, 2002.
You may request a copy of these filings at no cost, by writing or telephoning us at the following address:
General Counsel
Ventas, Inc.
4360 Brownsboro Road
Suite 115
Louisville, Kentucky 40207
(502) 357-9000
You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of those documents.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except in the case of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities, other than underwriting discounts and commissions.
Registration Fee under Securities Act of 1933 $ 69,000
Blue Sky Fees and Expenses................... 25,000*
Legal Fees and Expenses...................... 250,000*
Accounting Fees and Expenses................. 250,000*
Printing and Engraving....................... 250,000*
Rating Agencies Fees......................... 60,000*
Trustee Fees (including counsel fees)........ 20,000*
Miscellaneous Fees and Expenses.............. 76,000*
----------
Total................................. $1,000,000*
==========
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Item 15. Indemnification of Directors and Officers
Ventas, Inc.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers us to, and Article IX of our Certificate of Incorporation provides that we will, indemnify any person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ("Proceeding") because he or she is or was one of our directors or officers, or is or was serving at our request as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise, against all expenses, liabilities and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by him or her in connection with such Proceeding. We may provide by action of our Board of Directors through agreement, resolution or by a provision in our Third Amended and Restated Bylaws, indemnification of our employees and agents with substantially the same scope and effect as the indemnification provided in Article IX of our Certificate of Incorporation.
Expenses incurred by such a person in his or her capacity as one of our directors or officers (and not in any other capacity in which service was or is rendered by such person while a director or officer) in defending a Proceeding may be paid by us in advance of the final disposition of such Proceeding as authorized by the Board of Directors in a specific case upon receipt of an undertaking by or on behalf of that person to repay such amounts unless it is ultimately determined that that person is entitled to be indemnified by us as authorized by the General Corporation Law of the State of Delaware. Expenses incurred by a person in any capacity other than one of our officers or directors may be paid in advance of the final disposition of a Proceeding on such terms and conditions, if any, as the Board of Directors deems appropriate.
Pursuant to Section 102(b)(7) of the DGCL, our Certificate of Incorporation, as amended, eliminates certain liability of our directors for breach of their fiduciary duty of care. Article VIII of the Certificate of Incorporation provides that neither we nor our stockholders may recover monetary damages from our directors for breach of the duty of care in the performance of their duties as our directors. Article VIII does not, however, eliminate the liability of our directors (i) for a breach of the director's duty of loyalty, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful distributions), or (iv) for any improper personal benefit.
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The indemnification provided for by Article IX of our Certificate of Incorporation is a contract right and continues as to persons who cease to be directors, officers, employees or agents and inures to the benefit of the heirs, executors and administrators of such persons. No amendment to our Certificate of Incorporation or repeal of any article thereof increases the liability of any of our directors or officers for acts or omissions of such persons occurring prior to such amendment or repeal.
The right to indemnification conferred by Article IX of our Certificate of Incorporation is not exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to actions taken in his or her official capacity and in any other capacity while holding such office.
We may purchase and maintain insurance on behalf of any person who is or was one of our directors, officers, employees or agents, or is or was serving at our request as a director, trustee, officer, partner, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her and incurred by him or her in such capacity or arising out of his or her status as such, whether or not we would have the power or be obligated to indemnify him or her against such liability under the provisions of Article IX of our Certificate of Incorporation or the General Corporation Law of the State of Delaware.
We currently have in effect officers and directors liability insurance policies. These policies cover any negligent act, error or omission of a director or officer, subject to certain exclusions. The limit of liability under the policies is $60,000,000 in the aggregate annually for coverages in excess of deductibles.
Ventas Realty, Limited Partnership
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act provides that, subject to such standards and restrictions in its partnership agreement, if any, a limited partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsover.
Section 9.5 of Ventas Realty's Limited Partnership Agreement provides that Ventas Realty will indemnify and hold the officers, employees, agents and representatives of the partnership, its general partner, and each of the trustees, officers, employees, agents, and representatives of its general partner harmless from any loss or damage, including without limitation reasonable legal fees and court costs, incurred by it or any of them by reason of anything it or any of them may do or refrain from doing for and on behalf of Ventas Realty or in connection with its business or affairs; provided, however, that Ventas Realty will not be required to indemnify any of its officers, employees, agents and representatives, its general partner or any of the trustees, officers, employees, agents, and representatives of its general partner for any loss or damage which it might incur as a result of fraud, willful misconduct or gross negligence committed by any such person in the performance of their duties under the Limited Partnership Agreement. Ventas Realty's indemnification obligations under the Limited Partnership Agreement continue and are unaffected in respect of any other person which or who shall not have committed such fraud, willful misconduct or gross negligence. The indemnification provision under the Limited Partnership Agreement does not relieve the general partner of its proportionate share of the obligations of Ventas Realty in its capacity as a partner thereof.
Section 9.5 of Ventas Realty's Limited Partnership Agreement also provides that its general partner will be entitled to reimbursement from Ventas Realty for any amounts the general partner pays in satisfaction of indemnification obligations owed by Ventas Realty's general partner to present or former trustees, officers, employees, agents or representatives of such general partner or its predecessors, or other persons indemnified by such general partner, as provided for in or pursuant to the Declaration of Trust and By-Laws of Ventas Realty's general partner or otherwise.
The right to indemnification set forth in Section 9.5 of Ventas Realty's Limited Partnership Agreement is in addition to any rights to which the person or entity seeking indemnification may otherwise be entitled and inures to the benefit of the successors and assigns of any such person or entity.
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None of Ventas Realty's partners are personally liable with respect to any claim for indemnification pursuant to Section 9.5 of the Limited Partnership Agreement and such claims will be satisfied solely out of assets of Ventas Realty.
Section 9.4 of Ventas Realty's Limited Partnership Agreement provides that
its general partner will not be liable or accountable, in damages or otherwise,
to Ventas Realty or to any of its partners for any error of judgment or for any
mistakes of fact or law or for anything which it may do or refrain from doing
hereafter in connection with the business and affairs of Ventas Realty except
(i) in the case of fraud, willful misconduct (such as an intentional breach of
fiduciary duty or an intentional breach of the Limited Partnership Agreement)
or gross negligence, and (ii) for other breaches of the Limited Partnership
Agreement.
Officers and directors of Ventas Realty are covered under the same liability insurance policies described under "--Ventas, Inc." above.
Ventas Capital Corporation
Section 145 of the DGCL empowers Ventas Capital to, and Paragraph 10 of its Certificate of Incorporation provides that Ventas Capital will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Ventas Capital) by reason of the fact that the person is or was a director, officer, employee or agent of Ventas Capital, or is or was serving at the request of Ventas Capital as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of Ventas Capital, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. Under Paragraph 10 of Ventas Capital's Certificate of Incorporation, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of Ventas Capital, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful.
Also pursuant to Paragraph 10 of its Certificate of Incorporation, Ventas Capital will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Ventas Capital to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of Ventas Capital, or is or was serving at the request of Ventas Capital as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of Ventas Capital; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to Ventas Capital unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of Ventas Capital) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by Ventas Capital in advance of the final disposition of such action, suit or proceeding as authorized by Ventas Capital's board or directors upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by Ventas Capital as authorized by Paragraph 10 of its Certificate of Incorporation.
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Pursuant to Section 102(b)(7) of the DGCL, Paragraph 10 of Ventas Capital's Certificate of Incorporation provides that no director will be personally liable to Ventas Capital or any stockholder for monetary damages for breach of fiduciary duty as a director. Paragraph 10 of Ventas Capital's Certificate of Incorporation does not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to Ventas Capital or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful distributions), or (iv) for any transaction from which the director derived an improper personal benefit.
Paragraph 10 provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Ventas Capital shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Neither the amendment nor repeal of Paragraph 10 of Ventas Capital's Certificate of Incorporation, nor the adoption of any provision of its Certificate of Incorporation inconsistent with Paragraph 10, will eliminate or reduce the effect of Paragraph 10 of Ventas Capital's Certificate of Incorporation in respect of any matter occurring prior to such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to Paragraph 10 of Ventas Capital's Certificate of Incorporation if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted.
The indemnification and other rights set forth in Paragraph 10 of Ventas Capital's Certificate of Incorporation is not exclusive of any provisions with respect thereto in Ventas Capital's By-laws or any other contract or agreement between Ventas Capital and any officer, director, employee or agent of Ventas Capital.
Pursuant to Section 8 of Ventas Capital's By-Laws, Ventas Capital will indemnify any and all of its directors or officers, including former directors or officers, and any employee, who shall serve as an officer or director of any corporation at the request of Ventas Capital, to the fullest extent permitted under and in accordance with the laws of the State of Delaware.
Officers and directors of Ventas Capital are covered under the same liability insurance policies described under "--Ventas, Inc." above.
Ventas LP Realty, L.L.C.
Section 18-107 of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions in its limited liability company agreement, if any, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsover. Ventas LP Realty's limited liability company agreement does not contain standards or restrictions regarding Ventas LP Realty's power to indemnify and hold harmless any member or manager or other person from and against claims and demands.
Officers and directors of Ventas LP Realty are covered under the same liability insurance policies described under "--Ventas, Inc." above.
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Item 16. Exhibits
Exhibit
No. Description
------- -------------------------------------------------------------------------------------------------------
1.1 Form of Underwriting Agreement (for Debt Securities).*
1.2 Form of Underwriting Agreement (for Ventas, Inc. Preferred Stock).*
1.3 Form of Underwriting Agreement (for Ventas, Inc. Depositary Shares).*
1.4 Form of Underwriting Agreement (for Ventas, Inc. Common Stock).*
1.5 Form of Underwriting Agreement (for Ventas, Inc. Warrants).*
4.1 Certificate of Incorporation of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3
to Ventas, Inc.'s Form 10-Q for the quarterly period ended September 30, 1995).
4.2 Certificate of Amendment to Certificate of Incorporation of Ventas, Inc. (incorporated herein by
reference to Exhibit 3.1 to Ventas, Inc.'s Form 10-Q for the quarterly period ended June 30, 1998).
4.3 Third Amended and Restated Bylaws of Ventas, Inc. (incorporated herein by reference to Exhibit 3.2
to Ventas, Inc.'s Form 10-K for the year ended December 31, 1997).
4.4 Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to Ventas,
Inc.'s Form 10-K for the year ended December 31, 1998).
4.5 Indenture, dated as of April 17, 2002, among Ventas Realty, Limited Partnership, Ventas Capital
Corporation, the Guarantors named therein and U.S. Bank National Association, as trustee, relating
to the 8 3/4% Senior Notes due 2009 (incorporated herein by reference to Exhibit 99.1 to Ventas,
Inc.'s Form 8-K filed April 24, 2002).
4.6 Indenture, dated as of April 17, 2002, among Ventas Realty, Limited Partnership, Ventas Capital
Corporation, the Guarantors named therein and U.S. Bank National Association, as trustee, relating
to the 9% Senior Notes due 2012 (incorporated herein by reference to Exhibit 99.2 to Ventas, Inc.'s
Form 8-K filed April 24, 2002).
4.7 Rights Agreement, dated as of July 20, 1993, between Ventas, Inc. and National City Bank, as Rights
Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s Registration Statement on
Form 8-A).
4.8 First Amendment to Rights Agreement, dated as of August 11, 1995, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 2 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.9 Second Amendment to Rights Agreement, dated as of February 1, 1998, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.10 Third Amendment to Rights Agreement, dated as of July 27, 1998, between Ventas, Inc. and National
City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s
Registration Statement on Form 8-A12B/A).
4.11 Fourth Amendment to Rights Agreement, dated as of April 15, 1999, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.12 Fifth Amendment to Rights Agreement, dated as of December 15, 1999, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A12B/A).
4.13 Sixth Amendment to Rights Agreement, dated as of May 22, 2000, between Ventas, Inc. and National
City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s
Registration Statement on Form 8-A/A).
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Exhibit
No. Description
------- -------------------------------------------------------------------------------------------------------
4.14 Ventas, Inc. Distribution Reinvestment and Stock Purchase Plan (incorporated herein by reference to
Ventas, Inc.'s Registration Statement on Form S-3, Registration No. 333-65642, as amended).
4.15 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of the Baupost Group, LLC, dated February 28, 2001 (incorporated herein by
reference to Exhibit 4.4 to Ventas, Inc.'s Form 10-K for the year ended December 31, 2000).
4.16 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cohen & Steers Capital Management, Inc., dated May 8, 2000
(incorporated herein by reference to Exhibit 4.2 to Ventas, Inc.'s Form 10-Q for the quarterly
period ended September 30, 2000).
4.17 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cohen & Steers Management, Inc., dated February 25, 2002
(incorporated herein by reference to Exhibit 4.6 to Ventas, Inc.'s Form 10-K for the year ended
December 31, 2001).
4.18 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cramer Rosenthal & McGlynn, LLC, dated February 14, 2001
(incorporated herein by reference to Exhibit 4.7 to Ventas, Inc.'s Form 10-K for the year ended
December 31, 2000).
4.19 Form of Senior Indenture.
4.20 Form of Subordinated Indenture.
4.21 Form of Certificate of Designation for Ventas, Inc. Preferred Stock (together with Form of Preferred
Stock Certificate)*
4.22 Form of Deposit Agreement, including form of Ventas, Inc. Depositary Receipt for Ventas, Inc.
Depositary Shares.
4.23 Form of Warrant Agreement, including form of Ventas, Inc. Warrant.*
4.24 Form of Senior Debt Security*
4.25 Form of Subordinated Debt Security*
5.1 Opinion of Willkie Farr & Gallagher.
12.1 Statement Regarding Computation of Earnings to Fixed Charges and Preferred Stock Dividends.+
23.1 Consent of Willkie Farr & Gallagher (included in their opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.+
25.1 Statement of Eligibility of Trustee on Form T-1 relating to the 8 3/4% Senior Notes due 2009 and
related guarantees under the Indenture, dated as of April 17, 2002, among Ventas Realty, Limited
Partnership, Ventas Capital Corporation, the Guarantors named therein and U.S. Bank National
Association, as trustee (incorporated herein by reference to Exhibit 25.1 to the Registration
Statement on Form S-4 of Ventas, Inc., Ventas Realty, Limited Partnership, Ventas Capital
Corporation and Ventas LP Realty, L.L.C.).
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Exhibit
No. Description
------- ----------------------------------------------------------------------------------------------------
25.2 Statement of Eligibility of Trustee on Form T-1 relating to the 9% Senior Notes due 2012 and related
guarantees under the Indenture, dated as of April 17, 2002, among Ventas Realty, Limited
Partnership, Ventas Capital Corporation, the Guarantors named therein and U.S. Bank National
Association, as trustee (incorporated herein by reference to Exhibit 25.2 to the Registration
Statement on Form S-4 of Ventas, Inc., Ventas Realty, Limited Partnership, Ventas Capital
Corporation and Ventas LP Realty, L.L.C.).
25.3 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended,
of the trustee under the Senior Indenture.*
25.4 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended,
of the trustee under the Subordinated Indenture.*
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+ Previously filed.
Item 17. Undertakings
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the annual reports of Ventas, Inc. pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange of 1934 that are incorporated by
reference in this registration statement, if any, shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-7
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to trustees, directors, officers and controlling persons of the Registrants pursuant to the provisions described under Item 15 of this registration statement, or otherwise (other than insurance), the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a trustee, director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such trustee, director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it or them is against public policy as expressed in such the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and
(2) For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned Registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Louisville, the Commonwealth of Kentucky, on the 3rd day of July, 2002.
VENTAS, INC.
By: /S/ DEBRA A. CAFARO
-----------------------------
Name: Debra A. Cafaro
Title: Chief Executive
Officer and President
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director July 3, 2002
-----------------------------
Douglas Crocker, II
* Director July 3, 2002
-----------------------------
Jay M. Gellert
* Director July 3, 2002
-----------------------------
Ronald G. Geary
*
----------------------------- Director July 3, 2002
Gary W. Loveman
* Director July 3, 2002
-----------------------------
Sheli Z. Rosenberg
* Chairman of the Board and July 3, 2002
----------------------------- Director
W. Bruce Lunsford
* Chief Executive Officer, July 3, 2002
----------------------------- President and
Debra A. Cafaro Director (Principal
Executive Officer/Principal
Financial Officer)
* Principal Accounting Officer July 3, 2002
-----------------------------
Mary L. Smith
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Debra A. Cafaro, by signing her name below, signs this document on behalf of each of the above-named persons specified by an asterisk (*), pursuant to a power of attorney duly executed by such persons, filed with the Securities and Exchange Commission in the Registrants' Registration Statement on Form S-3 on July 3, 2002.
/S/ DEBRA A. CAFARO Attorney-in-fact
-----------------------------
Debra A. Cafaro
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II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Louisville, the Commonwealth of Kentucky, on the 3rd day of July, 2002.
VENTAS REALTY, LIMITED PARTNERSHIP
By: VENTAS, INC., its General Partner
By: /S/ DEBRA A. CAFARO
-----------------------------
Name: Debra A. Cafaro
Title: President and Chief
Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director of Ventas, Inc., corporate July 3, 2002
----------------------------- general partner of Ventas Realty,
Douglas Crocker, II Limited Partnership
* Director of Ventas, Inc., corporate July 3, 2002
----------------------------- general partner of Ventas Realty,
Jay M. Gellert Limited Partnership
* Director of Ventas, Inc., corporate July 3, 2002
----------------------------- general partner of Ventas Realty,
Ronald G. Geary Limited Partnership
* Director of Ventas, Inc., corporate July 3, 2002
----------------------------- general partner of Ventas Realty,
Gary W. Loveman Limited Partnership
* Director of Ventas, Inc., corporate July 3, 2002
----------------------------- general partner of Ventas Realty,
Sheli Z. Rosenberg Limited Partnership
* Chairman of the Board and Director of July 3, 2002
----------------------------- Ventas, Inc., corporate general
W. Bruce Lunsford partner of Ventas Realty, Limited
Partnership
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II-10
Signature Title Date
--------- ----- ----
* Chief Executive Officer, President and July 3, 2002
----------------------------- Director (Principal Executive
Debra A. Cafaro Officer/Principal Financial Officer)
of Ventas, Inc., corporate general
partner of Ventas Realty, Limited
Partnership
* Principal Accounting Officer of July 3, 2002
----------------------------- Ventas, Inc., corporate general
Mary L. Smith partner of Ventas Realty, Limited
Partnership
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Debra A. Cafaro, by signing her name below, signs this document on behalf of each of the above-named persons specified by an asterisk (*), pursuant to a power of attorney duly executed by such persons, filed with the Securities and Exchange Commission in the Registrants' Registration Statement on Form S-3 on July 3, 2002.
/S/ DEBRA A. CAFARO Attorney-in-fact
-----------------------------
Debra A. Cafaro
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II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville and the Commonwealth of Kentucky, on the 3rd day of July, 2002.
VENTAS CAPITAL CORPORATION
By: /S/ DEBRA A. CAFARO
-----------------------------
Name: Debra A. Cafaro
Title: President and Chief
Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* President, Chief Executive Officer and July 3, 2002
------------------------ Director (Principal Executive
Debra A. Cafaro Officer/Principal Financial Officer)
* Director July 3, 2002
------------------------
T. Richard Riney
* Principal Accounting Officer July 3, 2002
------------------------
Mary L. Smith
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Debra A. Cafaro, by signing her name below, signs this document on behalf of each of the above-named persons specified by an asterisk (*), pursuant to a power of attorney duly executed by such persons, filed with the Securities and Exchange Commission in the Registrants' Registration Statement on Form S-3 on July 3, 2002.
/S/ DEBRA A. CAFARO Attorney-in-fact
-----------------------------
Debra A. Cafaro
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II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Louisville, the Commonwealth of Kentucky, on the 3rd day of July, 2002.
VENTAS LP REALTY, L.L.C.
By: VENTAS, INC., its Sole Member
By: /S/ DEBRA A. CAFARO
-----------------------------
Name: Debra A. Cafaro
Title: President and Chief
Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director of Ventas, Inc., the Sole July 3, 2002
------------------------ Member of Ventas LP Realty, L.L.C.
Douglas Crocker, II
* Director of Ventas, Inc., the Sole July 3, 2002
------------------------ Member of Ventas LP Realty, L.L.C.
Jay M. Gellert
* Director of Ventas, Inc., the Sole July 3, 2002
------------------------ Member of Ventas LP Realty, L.L.C.
Ronald G. Geary
* Director of Ventas, Inc., the Sole July 3, 2002
------------------------ Member of Ventas LP Realty, L.L.C.
Gary W. Loveman
* Director of Ventas, Inc., the Sole July 3, 2002
------------------------ Member of Ventas LP Realty, L.L.C.
Sheli Z. Rosenberg
* Chairman of the Board and Director of July 3, 2002
------------------------ Ventas, Inc., the Sole Member of
W. Bruce Lunsford Ventas LP Realty, L.L.C.
* Chief Executive Officer, President and July 3, 2002
------------------------ Director (Principal Executive
Debra A. Cafaro Officer/Principal Financial Officer)
of Ventas, Inc., the Sole Member of
Ventas LP Realty, L.L.C.
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II-13
Signature Title Date
--------- ----- ----
* Principal Accounting Officer of July 3, 2002
------------------------ Ventas, Inc., the Sole Member of
Mary L. Smith Ventas LP Realty, L.L.C.
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Debra A. Cafaro, by signing her name below, signs this document on behalf of each of the above-named persons specified by an asterisk (*), pursuant to a power of attorney duly executed by such persons, filed with the Securities and Exchange Commission in the Registrants' Registration Statement on Form S-3 on July 3, 2002.
/S/ DEBRA A. CAFARO Attorney-in-fact
------------------------
Debra A. Cafaro
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II-14
EXHIBIT INDEX
Exhibit
No. Description
------- -------------------------------------------------------------------------------------------------------
1.1 Form of Underwriting Agreement (for Debt Securities).*
1.2 Form of Underwriting Agreement (for Ventas, Inc. Preferred Stock).*
1.3 Form of Underwriting Agreement (for Ventas, Inc. Depositary Shares).*
1.4 Form of Underwriting Agreement (for Ventas, Inc. Common Stock).*
1.5 Form of Underwriting Agreement (for Ventas, Inc. Warrants).*
4.1 Certificate of Incorporation of Ventas, Inc., as amended (incorporated herein by reference to Exhibit 3
to Ventas, Inc.'s Form 10-Q for the quarterly period ended September 30, 1995).
4.2 Certificate of Amendment to Certificate of Incorporation of Ventas, Inc. (incorporated herein by
reference to Exhibit 3.1 to Ventas, Inc.'s Form 10-Q for the quarterly period ended June 30, 1998).
4.3 Third Amended and Restated Bylaws of Ventas, Inc. (incorporated herein by reference to Exhibit 3.2
to Ventas, Inc.'s Form 10-K for the year ended December 31, 1997).
4.4 Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to Ventas,
Inc.'s Form 10-K for the year ended December 31, 1998).
4.5 Indenture, dated as of April 17, 2002, among Ventas Realty, Limited Partnership, Ventas Capital
Corporation, the Guarantors named therein and U.S. Bank National Association, as trustee, relating
to the 8 3/4% Senior Notes due 2009 (incorporated herein by reference to Exhibit 99.1 to Ventas,
Inc.'s Form 8-K filed April 24, 2002).
4.6 Indenture, dated as of April 17, 2002, among Ventas Realty, Limited Partnership, Ventas Capital
Corporation, the Guarantors named therein and U.S. Bank National Association, as trustee, relating
to the 9% Senior Notes due 2012 (incorporated herein by reference to Exhibit 99.2 to Ventas, Inc.'s
Form 8-K filed April 24, 2002).
4.7 Rights Agreement, dated as of July 20, 1993, between Ventas, Inc. and National City Bank, as Rights
Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s Registration Statement on
Form 8-A).
4.8 First Amendment to Rights Agreement, dated as of August 11, 1995, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 2 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.9 Second Amendment to Rights Agreement, dated as of February 1, 1998, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.10 Third Amendment to Rights Agreement, dated as of July 27, 1998, between Ventas, Inc. and National
City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s
Registration Statement on Form 8-A12B/A).
4.11 Fourth Amendment to Rights Agreement, dated as of April 15, 1999, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A/A).
4.12 Fifth Amendment to Rights Agreement, dated as of December 15, 1999, between Ventas, Inc. and
National City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas,
Inc.'s Registration Statement on Form 8-A12B/A).
4.13 Sixth Amendment to Rights Agreement, dated as of May 22, 2000, between Ventas, Inc. and National
City Bank, as Rights Agent (incorporated herein by reference to Exhibit 1 to Ventas, Inc.'s
Registration Statement on Form 8-A/A).
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II-15
Exhibit
No. Description
------- -------------------------------------------------------------------------------------------------------
4.14 Ventas, Inc. Distribution Reinvestment and Stock Purchase Plan (incorporated herein by reference to
Ventas, Inc.'s Registration Statement on Form S-3, Registration No. 333-65642, as amended).
4.15 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of the Baupost Group, LLC, dated February 28, 2001 (incorporated herein by
reference to Exhibit 4.4 to Ventas, Inc.'s Form 10-K for the year ended December 31, 2000).
4.16 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cohen & Steers Capital Management, Inc., dated May 8, 2000
(incorporated herein by reference to Exhibit 4.2 to Ventas, Inc.'s Form 10-Q for the quarterly
period ended September 30, 2000).
4.17 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cohen & Steers Management, Inc., dated February 25, 2002 (incorporated
herein by reference to Exhibit 4.6 to Ventas, Inc.'s Form 10-K for the year ended December 31,
2001).
4.18 Letter Agreement relating to a waiver of the provisions of Article XII of Ventas, Inc.'s Certificate of
Incorporation in favor of Cramer Rosenthal & McGlynn, LLC, dated February 14, 2001
(incorporated herein by reference to Exhibit 4.7 to Ventas, Inc.'s Form 10-K for the year ended
December 31, 2000).
4.19 Form of Senior Indenture.
4.20 Form of Subordinated Indenture.
4.21 Form of Certificate of Designation for Ventas, Inc. Preferred Stock (together with Form of Preferred
Stock Certificate).*
4.22 Form of Deposit Agreement, including form of Ventas, Inc. Depositary Receipt for Ventas, Inc.
Depositary Shares.
4.23 Form of Warrant Agreement, including form of Ventas, Inc. Warrant.*
4.24 Form of Senior Debt Security.*
4.25 Form of Subordinated Debt Security.*
5.1 Opinion of Willkie Farr & Gallagher.
12.1 Statement Regarding Computation of Earnings to Fixed Charges and Preferred Stock Dividends.+
23.1 Consent of Willkie Farr & Gallagher (included in their opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney.+
25.1 Statement of Eligibility of Trustee on Form T-1 relating to the 8 3/4% Senior Notes due 2009 and
related guarantees under the Indenture, dated as of April 17, 2002, among Ventas Realty, Limited
Partnership, Ventas Capital Corporation, the Guarantors named therein and U.S. Bank National
Association, as trustee (incorporated herein by reference to Exhibit 25.1 to the Registration
Statement on Form S-4 of Ventas, Inc., Ventas Realty, Limited Partnership, Ventas Capital
Corporation and Ventas LP Realty, L.L.C.).
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II-16
Exhibit
No. Description
------- ----------------------------------------------------------------------------------------------------
25.2 Statement of Eligibility of Trustee on Form T-1 relating to the 9% Senior Notes due 2012 and related
guarantees under the Indenture, dated as of April 17, 2002, among Ventas Realty, Limited
Partnership, Ventas Capital Corporation, the Guarantors named therein and U.S. Bank National
Association, as trustee (incorporated herein by reference to Exhibit 25.2 to the Registration
Statement on Form S-4 of Ventas, Inc., Ventas Realty, Limited Partnership, Ventas Capital
Corporation and Ventas LP Realty, L.L.C.).
25.3 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended,
of the trustee under the Senior Indenture.*
25.4 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended,
of the trustee under the Subordinated Indenture.*
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+ Previously filed.
II-17
EXHIBIT 4.19
[Ventas, Inc.]
[Ventas Realty, Limited Partnership, Ventas Capital Corporation]
[and each of the Guarantors named herein]
SENIOR DEBT SECURITIES
INDENTURE
Dated as of _______ __, 20__
-------------------------------,
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section 310(a)(1) ............................................................... 7.10 (a)(2) ............................................................... 7.10 (a)(3) ............................................................... N.A. (a)(4) ............................................................... N.A. (a)(5) ............................................................... 7.10 (b) .................................................................. 7.10 (c) .................................................................. N.A. 311(a) .................................................................. 7.11 (b) .................................................................. 7.11 (c) .................................................................. N.A. 312(a) .................................................................. 2.18 (b) .................................................................. 14.03 (c) .................................................................. 14.03 313(a) .................................................................. 7.06 (b)(1) ............................................................... 7.06 (b)(2) ............................................................... 7.06; 7.07 (c) .................................................................. 7.06; 14.02 (d) .................................................................. 7.06 314(a) ...................................... ........................... 4.03; 4.04; 14.02 (b) .................................................................. Article 11, if applicable. (c)(1) ............................................................... 14.04 (c)(2) ............................................................... 14.04 (c)(3) ............................................................... Article 11, if applicable. (d) .................................................................. Article 11, if applicable. (e) .................................................................. 14.05 315(a) .................................................................. 7.01 (b) .................................................................. 7.05,14.02 (c) .................................................................. 7.01 (d) .................................................................. 7.01 (e) .................................................................. 6.11 316(a) (last sentence) .................................................. 2.16 (a)(1)(A) ............................................................ 6.05 (a)(1)(B) ............................................................ 6.04 (a)(2) ............................................................... N.A. (b) .................................................................. 6.07 (c) .................................................................. N.A. 317(a)(1) ............................................................... 6.08 (a)(2) ............................................................... 6.09 (b) .................................................................. 2.19 318(a) .................................................................. 14.01 (b) .................................................................. N.A. (c) .................................................................. 14.01 |
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions ................................................. 1
Section 1.02 Incorporation by Reference of Trust Indenture Act ........... 5
Section 1.03 Rules of Construction ....................................... 5
ARTICLE 2.
THE SECURITIES
Section 2.01 Forms Generally ............................................. 6
Section 2.02 Form of Face of Security .................................... 6
Section 2.03 Form of Reverse of Security ................................. 8
Section 2.04 Form of Legend for Global Securities ........................ 11
Section 2.05 Form of Trustee's Certificate of Authentication ............. 11
Section 2.06 Amount Unlimited; Issuable in Series ........................ 11
Section 2.07 Denominations ............................................... 14
Section 2.08 Execution, Authentication, Delivery and Dating .............. 14
Section 2.09 Temporary Securities ........................................ 15
Section 2.10 Registration, Registration of Transfer and Exchange ......... 15
Section 2.11 Mutilated, Destroyed, Lost and Stolen Securities ............ 17
Section 2.12 Payment of Interest; Interest Rights Preserved .............. 17
Section 2.13 Persons Deemed Owners ....................................... 18
Section 2.14 Cancellation ................................................ 18
Section 2.15 Outstanding Securities ...................................... 18
Section 2.16 Treasury Securities ......................................... 19
Section 2.17 Paying Agent to Hold Money in Trust ......................... 19
Section 2.18 Holder Lists ................................................ 19
Section 2.19 Computation of Interest ..................................... 19
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee .......................................... 20
Section 3.02 Selection of Securities to Be Redeemed ...................... 20
Section 3.03 Notice of Redemption ........................................ 20
Section 3.04 Effect of Notice of Redemption .............................. 21
Section 3.05 Deposit of Redemption Price ................................. 21
Section 3.06 Securities Redeemed in Part ................................. 22
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities ....................................... 22
Section 4.02 Maintenance of Office or Agency ............................. 22
Section 4.03 Reports ..................................................... 23
Section 4.04 Compliance Certificate ...................................... 23
Section 4.05 Corporation Existence ....................................... 24
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ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets ..................... 24
Section 5.02 Successor Corporation Substituted ............................ 24
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default ............................................ 25
Section 6.02 Acceleration ................................................. 26
Section 6.03 Other Remedies ............................................... 26
Section 6.04 Waiver of Past Defaults ...................................... 26
Section 6.05 Control by Majority .......................................... 27
Section 6.06 Limitation on Suits .......................................... 27
Section 6.07 Rights of Holders of Securities to Receive Payment ........... 27
Section 6.08 Collection Suit by Trustee ................................... 27
Section 6.09 Trustee May File Proofs of Claim ............................. 27
Section 6.10 Priorities ................................................... 28
Section 6.11 Undertaking for Costs ........................................ 28
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee ............................................ 29
Section 7.02 Rights of Trustee ............................................ 29
Section 7.03 Individual Rights of Trustee ................................. 30
Section 7.04 Trustee's Disclaimer ......................................... 30
Section 7.05 Notice of Defaults ........................................... 30
Section 7.06 Reports by Trustee to Holders of the Securities .............. 31
Section 7.07 Compensation and Indemnity ................................... 31
Section 7.08 Replacement of Trustee ....................................... 32
Section 7.09 Successor Trustee by Merger, etc. ............................ 32
Section 7.10 Eligibility; Disqualification ................................ 33
Section 7.11 Preferential Collection of Claims Against Issuer ............. 33
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance ..... 33
Section 8.02 Legal Defeasance and Discharge ............................... 33
Section 8.03 Covenant Defeasance .......................................... 34
Section 8.04 Conditions to Legal or Covenant Defeasance ................... 34
Section 8.05 Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions ........................ 35
Section 8.06 Repayment to Issuer .......................................... 36
Section 8.07 Reinstatement ................................................ 36
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of HOlders of Securities ..................... 36
Section 9.02 With Consent of Holders of Securities ........................ 37
Section 9.03 Compliance with Trust Indenture Act .......................... 38
Section 9.04 Revocation and Effect of Consents ............................ 38
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Section 9.05 Notation or Exchange of Securities ........................... 38
Section 9.06 Trustee to Sign Amendments, etc. ............................. 39
ARTICLE 10.
SECURITY GUARANTEES
ARTICLE 11.
SECURITY
ARTICLE 12.
CONVERSION OF SECURITIES
ARTICLE 13.
SATISFACTION AND DISCHARGE
Section 13.01 Satisfaction and Discharge ................................... 39
Section 13.02 Application of Trust Money ................................... 40
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls ................................. 41
Section 14.02 Notices ...................................................... 41
Section 14.03 Communication by Holders of Securities with Other Holders
of Securities ................................................ 42
Section 14.04 Certificate and Opinion as to Conditions Precedent ........... 42
Section 14.05 Statements Required in Certificate or Opinion ................ 42
Section 14.06 Rules by Trustee and Agents .................................. 43
Section 14.07 No Personal Liability of Directors, Officers, Employees
and Stockholders ............................................. 43
Section 14.08 Governing Law ................................................ 43
Section 14.09 No Adverse Interpretation of Other Agreements ................ 43
Section 14.10 Successors ................................................... 43
Section 14.11 Severability ................................................. 43
Section 14.12 Counterpart Originals ........................................ 43
Section 14.13 Table of Contents, Headings, etc. ............................ 43
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INDENTURE dated as of _______ __, 20__ among [Ventas Realty, Limited
Partnership, a Delaware limited partnership and Ventas Capital Corporation, a
Delaware corporation] [Ventas, Inc., a Delaware corporation] (the "Issuer"),
[the Guarantors (as defined)] and _______________________, as trustee (the
"Trustee").
The Issuer [, the Guarantors] and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the Senior Debt Securities (the "Securities"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control," as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Security Registrar or Paying Agent.
"Authentication Order" means a written order of the Issuer to the Trustee signed by two Officers to authenticate Securities for original issue up to the aggregate principal amount set forth in such Authentication Order.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the corporation;
(2) with respect to a partnership, the board of directors of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such Person serving a similar function.
"Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in The City of New York are required or authorized to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office of the Trustee" will be at the address of the Trustee specified in Section 14.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
"Covenant Defeasance" has the meaning specified in Section 8.03.
"Custodian" means the Trustee, as custodian with respect to the Securities in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date of determination.
"Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 2.06 for such Securities).
"Guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any indebtedness.
"Guarantors" means any Person that executes a Security Guarantee of the Securities in accordance with the provisions of the Indenture and their respective successors and assigns; provided, however that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when its Guarantee of the Securities is released in accordance with the terms of the Indenture.
"Holder" means a Person in whose name a Security is registered.
"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 2.06.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Issuer" means [Ventas, Inc.] [Ventas Realty, Limited Partnership and Ventas Capital Corporation], and any and all successors thereto.
"Issuer Request" or "Issuer Order" means a written request or order signed in the name of the Issuer by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Legal Defeasance" has the meaning specified in Section 8.02.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and, except in connection with any Qualified CMBS Transaction, any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Investment Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Issuer by two Officers of the Issuer, one of whom must be the principal executive officer, the principal financial officer, the principal investment officer, the treasurer or the principal accounting officer of the Issuer or a general partner of an Issuer, that meets the requirements of Section 14.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 14.05 hereof. The counsel may be an employee of or counsel to the Issuer, any Subsidiary of the Issuer or the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Stated Maturity thereof.
"Paying Agent" means any Person authorized by the Issuer to pay the principal of or premium or interest on any Securities on behalf of the Issuer.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 2.06.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified CMBS Transaction" means any transaction or series of transactions entered into by Ventas, Inc. or any of its Restricted Subsidiaries pursuant to which Ventas, Inc. or any of its Restricted Subsidiaries sells, conveys or otherwise transfers to (i) an Unrestricted Subsidiary, or grants a security interest in, any real estate assets or mortgage receivables (whether now existing or arising in the future) of Ventas, Inc. or any of its Restricted Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such real estate assets or mortgage receivables, all contracts and all guarantees or other obligations in respect of such real estate assets or mortgage receivables, proceeds of such real estate assets or mortgage receivables and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving real estate assets or mortgage receivables.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 2.06.
"Responsible Officer," when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
"Securities" has the meaning assigned to it in the preamble to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Guarantee" means the Guarantee by each Guarantor of the Issuer's payment obligations under this Indenture and on the Securities, executed pursuant to the provisions of this Indenture.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 2.10.
"Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" means, for any Person, any corporation or other entity of which a majority of the Voting Stock is owned, directly or indirectly, by such Person or one or more other Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) Ventas Specialty I, Inc., Ventas Finance I, Inc., Ventas Specialty I, LLC and Ventas Finance I, LLC, and (ii) any other entity that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a board resolution, but only to the extent that such Subsidiary meets any additional criteria set forth in a supplement to this Indenture.
"Ventas, Inc." means Ventas, Inc., a Delaware corporation.
"Voting Stock" of any Person as of any date means the capital stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Section 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Security [and the Security Guarantees] means the Issuer [and the Guarantors], respectively, and any successor obligor upon the Securities [and the Security Guarantees], respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them.
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
ARTICLE 2.
THE SECURITIES
Section 2.01 Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a resolution of the Board of Directors of the Issuer or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a resolution of the Board of Directors of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 2.08 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Face of Security.
[Insert any legend required by the Code and the regulations thereunder.]
No. _______ $ __________
[Issuer] (herein called the "Issuer", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ___________________________, or registered assigns, the principal sum of _______________________ U.S. dollars on __________________________ [if the Security is to bear interest prior to Maturity, insert-- , and to pay interest thereon from _____________________ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on _______________ and ______________________ in each year, commencing __________________, at the rate of __% per annum, until the principal hereof is paid or made available for payment, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the ______ or ______ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in ________, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
No director, officer, employee or stockholder of Ventas, Inc. or any of its Subsidiaries, as such, will have any liability for any obligations of Ventas, Inc. or any of its Subsidiaries under the Securities or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each holder by accepting a Security waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration or the issuance of the Securities.
In Witness Whereof, the Issuer has caused this instrument to be duly executed [under its corporate seal].
Dated: [Issuer]
By___________________________________
Title:
[SEAL]
[Attest:
____________________________________
Title:]
Section 2.03 Form of Reverse of Security.
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This Security is one of a duly authorized issue of securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of ______________________ (herein called the "Indenture", which term shall have the meaning assigned to it in such instrument), between the Issuer[, the Guarantors] and __________________, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert-- , limited in aggregate principal amount to $________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ________________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert-- on or after ___________, ____], as a whole or in part, at
the election of the Issuer, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert-- on or
before ____________, ___%, and if redeemed] during the 12-month period beginning
__________________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
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and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on
[the relevant record dates] referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, (1) on _______ in any year commencing with the year ___ and ending with the year ___ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert-- on or after ______], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning _______ of the years
indicated,
Redemption Price For
Redemption Price For Redemption Otherwise Than
Redemption Through Operation Through Operation of the
Year of the Sinking Fund Sinking Fund
---- ------------------- -------------------------
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on [the relevant record dates] referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for the redemption on _________________ in each year beginning with the year ____ and ending with the year ______ of [if applicable, insert -- not less than $___________ ("mandatory sinking fund") and not more than] $__________ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Issuer otherwise than through [if applicable, insert -- mandatory] sinking fund payments may be credited against subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise required to be made [if applicable, insert -- , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
Subject to certain exceptions, the Indenture [the Security Guarantees] or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities, and any existing default or compliance with any provision of the Indenture[, the Security Guarantees] or the Securities may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Securities. Without the consent of any Holder of a Security, the
Indenture[, the Security Guarantees] or the Securities may be amended or supplemented to cure any ambiguity, defect or inconsistency; to provide for uncertificated Securities in addition to or in place of certificated Securities; to make any other change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the legal rights under the Indenture of any such holder; or to comply with requirements of the Commission in order to effect or maintain the qualification of the applicable Indenture under the Trust Indenture Act.
As provided in and subject to the terms of the Indenture, a Holder of this Security may pursue a remedy with respect to this Indenture or the Securities only if:
(1) such Holder of a Security has given the Trustee written notice that an Event of Default has occurred and remains uncured;
(2) the Holders of at least a majority in principal amount of all outstanding Securities have made a written request that the Trustee take action because of the Default, and have offered reasonable indemnity to the Trustee against the cost and other liabilities of taking that action;
(3) the Trustee must have not taken action for 60 days after receipt of the notice and offer of indemnity; and
(4) the Holders of at least a majority in principal amount of all outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $______ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 2.06 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture.
Section 2.05 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
As Trustee
Authorized Officer
Section 2.06 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a resolution of the Board of the Directors of the Issuer and, subject to Section 2.08, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.09, 2.10, 2.11, 3.06 or 9.05 and except for any Securities which,
pursuant to Section 2.08, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and premium, if any, and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Issuer and, if other than by a resolution of the Board of the Directors of the Issuer, the manner in which any election by the Issuer to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose;
(l) if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the Issuer or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(m) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 8.02 or Section 8.03 or both such Sections and, if other than by a resolution of the Board of Directors of the Issuer, the manner in which any election by the Issuer to defease such Securities shall be evidenced;
(p) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.04 and any circumstances in
addition to or in lieu of those set forth in Clause (b) of the last paragraph of
Section 2.10 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(q) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(r) any addition to or change in the covenants set forth in Article Four which applies to Securities of the series;
(s) if applicable, that the Securities of the series are convertible into or exchangeable for common stock or other securities of the Issuer, the period or periods within which, the price or prices at which and the terms and conditions upon which, and the limitations and restrictions, if any, upon which, any Securities of the series shall be convertible or exchangeable, in whole or in part, into common stock or other securities of the Issuer; and
(t) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Article 9).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the resolution of the Board of the Directors of the Issuer referred to above and (subject to Section 2.08) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a resolution of the Board of Directors of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series.
Section 2.07 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 2.06. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.08 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, and may, but need not, have corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more resolutions of the Board of Directors of the Issuer as
permitted by Sections 2.01 and 2.06, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or pursuant
to the resolution of the Board of Directors of the Issuer as permitted by
Section 2.01, that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to the resolution of the Board of Directors of the Issuer as permitted by Section 2.06, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer [and Guarantors] enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.06 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 2.06 or the Issuer Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 2.14, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.09 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon Issuer Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 2.10 Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Issuer in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Issuer in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.09, 3.06 or Article 12 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Issuer shall not be required (a) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 3.02 and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary (A) has notified the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act, (ii) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (iii) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 2.06.
(c) Subject to Clause (b) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 2.09, 2.11, 3.06 or 9.05 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Section 2.11 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.12 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 2.06 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 2.13 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 2.12) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected by notice to the contrary.
Section 2.14 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by an Issuer Order.
Section 2.15 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions of Section 2.06, and
those described in this Section as not outstanding. Except as set forth in
Section 2.16 hereof, a Security does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer hold the Security.
If a Security is replaced pursuant to Section 2.11 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 or 13.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.16 Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Issuer, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Securities that the Trustee knows are so owned will be so disregarded.
Section 2.17 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Securities, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) will have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Securities.
Section 2.18 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders of Securities and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Security Registrar, the Issuer will furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities and the Issuer shall otherwise comply with TIA ss. 312(a).
Section 2.19 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.06 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Securities pursuant to the redemption provisions of such Securities or the applicable supplemental indenture, they must furnish to the Trustee, at least 45 days (or such shorter period as is satisfactory to the Trustee) before a Redemption Date, an Officers' Certificate setting forth:
(1) the clause of this Indenture and/or such applicable supplemental indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Securities to be redeemed, plus accrued interest to the Redemption Date; and
(4) the Redemption Price.
Section 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any time, the Trustee will select Securities for redemption as follows:
(1) if the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Securities are listed; or
(2) if the Securities are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate.
In the event of partial redemption by lot, the particular Securities to be redeemed will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities not previously called for redemption.
The Trustee will promptly notify the Issuer in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities and portions of Securities selected will be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Securities of a Holder are to be redeemed, the entire outstanding amount of Securities held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the Issuer will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Securities are to be
redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 13 of this Indenture.
The notice will identify the Securities to be redeemed and will state:
(1) the Redemption Date;
(2) the Redemption Price, including the accrued interest to the Redemption Date;
(3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Security;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Securities and/or Section of the applicable supplemental indenture pursuant to which the Securities called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
At the Issuer's request, the Trustee will give the notice of redemption in the Issuer's name and at the Issuer's expense; provided, however, that the Issuer has delivered to the Trustee, at least 45 days (or such shorter period of time as is satisfactory to the Trustee) prior to the Redemption Date, an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption become irrevocably due and payable on the Redemption Date at the Redemption Price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption Price.
On the Redemption Date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest, if any, on all Securities to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date, interest will cease to accrue on the Securities or the portions of Securities called for
redemption. If a Security is redeemed on or after a Regular Record Date or Special Payment Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Security was registered at the close of business on such Regular Record Date or Special Payment Date. If any Security called for redemption is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Securities and in Section 4.01 hereof.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Security equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities.
The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than Ventas, Inc. or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Securities to the extent lawful; the Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee or Security Registrar) where Securities may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Securities and this Indenture may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer fails to maintain any such required office or agency or fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 14.02 hereof.
Section 4.03 Reports.
(a) Whether or not required by the Commission, so long as any Securities are outstanding, Ventas, Inc. shall furnish to the Holders of Securities and the Trustee, within the time periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if Ventas, Inc. were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by Ventas, Inc.'s certified independent accountants; and
(2) all current reports that would be required to be filed with the Commission on Form 8-K if Ventas, Inc. were required to file such reports.
In addition, whether or not required by the Commission, Ventas, Inc.
shall file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
(b) For so long as any Securities remain outstanding, Ventas, Inc. shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Issuer [and each Guarantor (to the extent that such Guarantor is so required under the TIA)] shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Issuer during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Securities is prohibited or if such event has occurred, a description of the event and what action the Issuer is taking or proposes to take with respect thereto.
(b) So long as any of the Securities are outstanding, the Issuer will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
Section 4.05 Corporate Existence.
Except as permitted as by Article 5, Ventas, Inc. and its Restricted Subsidiaries shall do all things necessary to preserve and keep their existence, rights and franchises; provided, however, that the existence of a Restricted Subsidiary may be terminated if the Board of Directors of Ventas, Inc. determines that it is in the best interests of Ventas, Inc. to do so.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
Ventas, Inc. may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not Ventas, Inc. is the surviving corporation); or (2) sell, assign, transfer, convey, lease (other than to an unaffiliated operator in the ordinary course of business) or otherwise dispose of all or substantially all of the properties or assets of Ventas, Inc. and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) Ventas, Inc. is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than Ventas, Inc.) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than Ventas, Inc.) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Ventas, Inc. under the Securities and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, on a pro forma basis giving effect to such transaction or series of transactions (and treating any obligation of Ventas, Inc. incurred in connection with or as a result of such transaction or series of transactions as having been incurred at the time of such transaction), no Default or Event of Default exists; and
In addition, in the case of any lease of all or substantially all of its properties or assets (other than to an unaffiliated operator in the ordinary course of business), in one or more related transactions, to any other Person the terms of the lease must be reasonably acceptable to the Trustee or to a majority of the Holders of the Securities. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among Ventas, Inc. and its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, transfer or other disposition of all or substantially all of the properties or assets of Ventas, Inc. in accordance with Section 5.01, the successor Person formed by such consolidation or into which Ventas, Inc. is merged or to which such sale, assignment, transfer, conveyance or other disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of, Ventas, Inc. under this Indenture with the same effect as if such successor initially had been named as Ventas, Inc. herein. When a successor
assumes all the obligations of its predecessor under this Indenture and the Securities following a consolidation or merger, or any sale, assignment, transfer, conveyance, transfer or other disposition of 90% or more of the assets of the predecessor in accordance with the foregoing provisions, the predecessor shall be released from those obligations.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default:"
(1) The Issuer does not pay the principal or any premium on the Securities when due and payable;
(2) The Issuer does not pay interest on the Securities within 30 days after the applicable due date;
(3) The Issuer does not deposit any sinking fund payment within 30 days after the applicable due date;
(4) The Issuer remains in breach of any other term of the Indenture for 60 days after it receive a notice of Default stating it is in breach. Either the Trustee or the Holders of more than 25% in principal amount of the Securities may send the notice;
(5) Final judgments aggregating in excess of $15.0 million (exclusive of amounts covered by insurance) are entered against the Issuer and are not paid, discharged or stayed for a period of 60 days;
(6) The Issuer defaults under any of its indebtedness in an aggregate principal amount exceeding $15.0 million after the expiration of any applicable grace period, which default results in the acceleration of the maturity of such indebtedness. Such default is not an Event of Default if the other indebtedness is discharged, or the acceleration is rescinded or annulled, within a period of 10 days after the Issuer receives notice specifying the default and requiring that it discharge the other indebtedness or cause the acceleration to be rescinded or annulled. Either the Trustee or the Holders of more than 25% in principal amount of the Securities may send the notice;
(7) Ventas, Inc. or any of its Significant Subsidiaries:
(a) commences a voluntary case under applicable Bankruptcy Law,
(b) consents to the entry of an order for relief against it in an involuntary case under applicable Bankruptcy Law,
(c) consents to the appointment of a custodian of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due.
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against Ventas, Inc. or any of its Significant Subsidiaries in an involuntary case;
(b) appoints a custodian of Ventas, Inc. or any of its Significant Subsidiaries or for all or substantially all of the property of Ventas, Inc. or any of its Significant Subsidiaries; or
(c) orders the liquidation of Ventas, Inc. or any of its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(9) any other Event of Default provided with respect to Securities
of that series set forth in a supplemental indenture pursuant to
Section 2.06.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (7) or (8) of
Section 6.01 hereof, with respect to Ventas, Inc. or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, all outstanding Securities will become due
and payable immediately without further action or notice. If any other Event of
Default occurs and has not been cured, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Securities may declare the
entire principal amount of all the Securities to be due and immediately payable
by written notice to the Issuer and the Trustee. Upon any such declaration, the
Securities shall become due and payable immediately. The Holders of a majority
in aggregate principal amount of the then outstanding Securities by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Security in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Securities by notice to the Trustee may on behalf of the Holders of all of the Securities waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Securities; provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Securities may rescind an acceleration and its consequences, including any related payment default that resulted
from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Securities may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Securities or that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Security may pursue a remedy with respect to this Indenture or the Securities only if:
(1) the Holder of a Security must give the Trustee written notice that an Event of Default has occurred and remains uncured;
(2) the Holders of at least a majority in principal amount of all outstanding Securities must make a written request that the Trustee take action because of the Default, and must offer reasonable indemnity to the Trustee against the cost and other liabilities of taking that action;
(3) the Trustee must have not taken action for 60 days after receipt of the notice and offer of indemnity; and
(4) the Holders of at least a majority in principal amount of all outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
Section 6.07 Rights of Holders of Securities to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal, premium, if any, and interest on the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Securities and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any and interest, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Issuer's use of the proceeds from the Securities or any money paid to the Issuer or upon the Issuer's direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee will mail to Holders of Securities a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Security, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.
Section 7.06 Reports by Trustee to Holders of the Securities.
(a) Within 120 days after the end of each fiscal year beginning with the end of the fiscal year following the date of this Indenture, and for so long as Securities remain outstanding, the Trustee will mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with [TIA ss. 313(b)(1)] and TIA ss. 313(b)(2). The Trustee will also transmit by mail all reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Securities will be mailed by the Trustee to the Issuer and filed by the Trustee with the Commission and each stock exchange on which the Securities are listed in accordance with TIA ss. 313(d). The Issuer will promptly notify the Trustee when the Securities are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Issuer [and the Guarantors] will indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Issuer [and the Guarantors] (including this Section 7.07) and defending
itself against any claim (whether asserted by the Issuer [the Guarantors] or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee will notify the Issuer promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve
the Issuer [or any of the Guarantors] of its obligations hereunder. The Issuer
[or such Guarantor] will defend the claim and the Trustee will cooperate in the
defense. The Trustee may have separate counsel and the Issuer will pay the
reasonable fees and expenses of such counsel. Neither the Issuer [nor any
Guarantor] need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Issuer [and the Guarantors] under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Issuer's payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities. Such Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIAss. 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer's obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.s
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Issuer.
The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Securities upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuer [and each of the Guarantors] will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Securities [(including the Security Guarantees)] on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Issuer [and the Guarantors] will
be deemed to have paid and discharged the entire debt represented by the
outstanding Securities [(including the Security Guarantees)], which will
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in clauses (1) and
(2) below, and to have satisfied all their other obligations under such
Securities, the Security Guarantees and this Indenture (and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Securities to receive payments in respect of the principal of, or interest or premium, if any, on such Securities when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Issuer's obligations with respect to such Securities under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer's [and the Guarantors'] obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of their option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer [and the Guarantors] will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections [insert section numbers] hereof with respect to the outstanding Securities on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Securities will thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Securities will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities [and Security Guarantees], the Issuer [and the Guarantors] may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities [and Security Guarantees] will be unaffected thereby. In addition, upon the Issuer's exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(4) through 6.01(5) hereof will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, non-callable U.S. government or U.S. government agency notes or bonds(or depositary receipts representing these notes or bonds), or any combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the outstanding Securities on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(2) in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(a) the Issuer has received from, or there has been published by, the IRS a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Issuer must deliver to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which Ventas, Inc. is a party or by which Ventas, Inc. is bound;
(6) the Issuer must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by Issuer with the intent of preferring the Holders of Securities over the other creditors of Issuer with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others; and
(7) the Issuer must deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. government or U.S. government agency notes or bonds (or depositary receipts representing these notes or bonds), or any combination thereof (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Securities will be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable U.S.
government or U.S. government agency notes or bonds deposited pursuant to
Section 8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Securities.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or non-callable U.S. government or U.S. government agency notes or bonds held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Security will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. government or U.S. government agency notes or bonds in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer's [and the Guarantor's] obligations under this Indenture and the Securities and the Security Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that if the Issuer makes any payment of principal of, premium, if any, or interest on any Security following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Securities.
Notwithstanding Section 9.02 of this Indenture, the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture[, the Security Guarantees] or the Securities without the consent of any Holder of a Security:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(3) to provide for the assumption of the Issuer's obligations to Holders of Securities in the case of a merger or consolidation or sale of all or substantially all of the Issuer's assets;
(4) to add [additional] Security Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to make any other change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the legal rights under the Indenture of any such holder;
(7) to comply with requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(8) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder or any such Security with respect to such provision or (ii) shall become effective only when there is no such Security outstanding; or
(9) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.06.
Section 9.02 With Consent of Holders of Securities.
Except as provided below in this Section 9.02, the Issuer[ , the Guarantors] and the Trustee may amend or supplement this Indenture, the Security Guarantees and the Securities with the consent of the Holders of at least a majority in principal amount of the Securities then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Securities, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Security Guarantees or the Securities may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Securities voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Securities). Section 2.15 hereof shall determine which Securities are considered to be "outstanding" for purposes of this Section 9.02.
It is not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer will mail to the Holders of Securities affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Securities then outstanding voting as a single class may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Securities. However, without the consent of each
Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Securities held by a non-consenting Holder):
(1) reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Security or alter the provisions with respect to the redemption (but not with respect to offers to purchase) of the Securities;
(3) reduce the rate of or change the time for payment of interest on any Security;
(4) waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Securities (except a rescission of acceleration of the Securities by the Holders of at least a majority in aggregate principal amount of the Securities and a waiver of the payment Default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in the Securities;
(6) make any change in Section 6.04 or 6.07 hereof relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of, or interest or premium, if any, on the Securities;
(7) waive a redemption payment (but not an offer to purchase payment) with respect to any Security;
(8) release any Guarantor from any of its obligations under its Security Guarantee or the Indenture, except in accordance with the terms of the Indenture; or
(9) make any change in the amendment and waiver provisions set forth in clauses (1) through (8) of this Section 9.02.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities will be set forth in a amended or supplemental Indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder of a Security or subsequent Holder of a Security may revoke the consent as to its Security if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Security thereafter authenticated. The Issuer in exchange for all Securities may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Security will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
Upon the request of the Issuer accompanied by a resolution of its Board
of Directors authorizing the execution of any amended or supplemental Indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join
with the Issuer in the execution of an amended or supplemental Indenture unless
such amended or supplemental Indenture directly affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture. In executing any amended or
supplemental indenture, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 14.04 hereof, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10.
SECURITY GUARANTEES
[PROVISIONS FOR SECURITY GUARANTEES TO BE PROVIDED HERE, IF
APPLICABLE].
ARTICLE 11.
SECURITY
[SECURITY FOR SENIOR DEBT SECURITIES TO BE PROVIDED HERE, IF
APPLICABLE].
ARTICLE 12.
CONVERSION OF SECURITIES
[PROVISIONS FOR CONVERSION OF SECURITIES TO BE PROVIDED HERE, IF
APPLICABLE].
ARTICLE 13.
SATISFACTION AND DISCHARGE
Section 13.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Securities issued hereunder, when:
(1) either:
(a) all Securities that have been authenticated (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or
(b) all Securities that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Issuer [or any Guarantor] has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. government or U.S. government agency notes or bonds, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Securities not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default (other than those resulting
directly from the incurrence of indebtedness to fund such deposit) has
occurred and is continuing on the date of such deposit or will occur as
a result of such deposit and such deposit will not result in a breach
or violation of, or constitute a default under, any other instrument to
which the Issuer [or any Guarantor] are a party or by which the Issuer
[or any Guarantor] is bound;
(3) the Issuer [or any Guarantor] has paid or caused to be paid all sums payable by it under this Indenture; and
(4) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Securities at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Section 13.02 and Section 8.06 will
survive. In addition, nothing in this Section 13.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 13.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. government or U.S. government agency notes or bonds in accordance with Section 13.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer's [and any Guarantor's] obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.01; provided, however, if the Issuer has made any payment of principal of, premium, if any, or interest on any Securities because of the reinstatement of their obligations, the Issuer shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money or U.S. government or U.S. government agency notes or bonds held by the Trustee or Paying Agent.
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.
This Indenture is subject to the provising of the TIA which are required to be part of this Indenture. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 14.02 Notices.
Any notice or communication by the Issuer[, any Guarantor] or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Issuer [and/or any Guarantor]:
Ventas, Inc.
4360 Brownsboro Road, Suite 115
Louisville, Kentucky 40207-1642
Telecopier No.: (502) 357-9001
Attention: General Counsel
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Telecopier No.: (212) 728-8111
Attention: Maurice Lefkort, Esquire
If to the Trustee:
The Issuer[, any Guarantor] or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Security Registrar. Any notice or communication will also be so mailed to any Person described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Securities with Other Holders of Securities.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Issuer, the Trustee, the Securities Registrar and anyone else shall have the protection of TIA ss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 14.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 14.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 14.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 14.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Security Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee or stockholder of Ventas, Inc. or any of its Subsidiaries, as such, will have any liability for any obligations of Ventas, Inc. or any of its Subsidiaries under the Securities or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each holder by accepting a Security waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration or the issuance of the Securities.
Section 14.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES [AND THE SECURITY GUARANTEES] WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 14.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 14.10 Successors.
All agreements of the Issuer in this Indenture and the Securities will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. [All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Article 10.]
Section 14.11 Severability.
In case any provision in this Indenture or in the Securities is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 14.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
Section 14.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of _________, 200__ ISSUER:
[Issuer]
Title:
GUARANTORS:
[Guarantor]
Title:
TRUSTEE:
[Trustee]
Title:
EXHIBIT 4.20
[Ventas, Inc.]
[Ventas Realty, Limited Partnership, Ventas Capital Corporation]
[and each of the Guarantors named herein]
SUBORDINATED DEBT SECURITIES
INDENTURE
Dated as of _______ __, 20__
-------------------------------,
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section 310(a)(1).................................. 7.10 (a)(2).................................. 7.10 (a)(3).................................. N.A. (a)(4).................................. N.A. (a)(5).................................. 7.10 (b)..................................... 7.10 (c)..................................... N.A. 311(a)..................................... 7.11 (b)..................................... 7.11 (c)..................................... N.A. 312(a)..................................... 2.18 (b)..................................... 15.03 (c)..................................... 15.03 313(a)..................................... 7.06 (b)(1).................................. 7.06 (b)(2).................................. 7.06; 7.07 (c)..................................... 7.06; 15.02 (d)..................................... 7.06 314(a)..................................... 4.03; 4.04; 15.02 (b)..................................... Article 12, if applicable. (c)(1).................................. 15.04 (c)(2).................................. 15.04 (c)(3).................................. Article 12, if applicable. (d)..................................... Article 12, if applicable. (e)..................................... 15.05 315(a)..................................... 7.01 (b)..................................... 7.05, 15.02 (c)..................................... 7.01 (d)..................................... 7.01 (e)..................................... 6.11 316(a) (last sentence)..................... 2.16 (a)(1)(A)............................... 6.05 (a)(1)(B)............................... 6.04 (a)(2).................................. N.A. (b)..................................... 6.07 (c)..................................... N.A. 317(a)(1).................................. 6.08 (a)(2).................................. 6.09 (b)..................................... 2.19 318(a)..................................... 15.01 (b)..................................... N.A. (c)..................................... 15.01 |
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions. ............................................ 1
Section 1.02 Incorporation by Reference of Trust Indenture Act. ...... 5
Section 1.03 Rules of Construction. .................................. 5
ARTICLE 2.
THE SECURITIES
Section 2.01 Forms Generally ......................................... 6
Section 2.02 Form of Face of Security. ............................... 6
Section 2.03 Form of Reverse of Security ............................. 8
Section 2.04 Form of Legend for Global Securities. ................... 11
Section 2.05 Form of Trustee's Certificate of Authentication ......... 11
Section 2.06 Amount Unlimited; Issuable in Series. ................... 11
Section 2.07 Denominations. .......................................... 14
Section 2.08 Execution, Authentication, Delivery and Dating. ......... 14
Section 2.09 Temporary Securities. ................................... 15
Section 2.10 Registration, Registration of Transfer and Exchange ..... 15
Section 2.11 Mutilated, Destroyed, Lost and Stolen Securities. ....... 17
Section 2.12 Payment of Interest; Interest Rights Preserved .......... 17
Section 2.13 Persons Deemed Owners. .................................. 18
Section 2.14 Cancellation ............................................ 18
Section 2.15 Outstanding Securities. ................................. 19
Section 2.16 Treasury Securities. .................................... 19
Section 2.17 Paying Agent to Hold Money in Trust. .................... 19
Section 2.18 Holder Lists. ........................................... 19
Section 2.19 Computation of Interest. ................................ 20
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee. ..................................... 20
Section 3.02 Selection of Securities to Be Redeemed. ................. 20
Section 3.03 Notice of Redemption .................................... 21
Section 3.04 Effect of Notice of Redemption. ......................... 21
Section 3.05 Deposit of Redemption Price ............................. 22
Section 3.06 Securities Redeemed in Part. ............................ 22
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities. .................................. 22
Section 4.02 Maintenance of Office or Agency. ........................ 22
Section 4.03 Reports. ................................................ 23
Section 4.04 Compliance Certificate. ................................. 23
Section 4.05 Corporate Existence. .................................... 24
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ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets ................ 24
Section 5.02 Successor Corporation Substituted ....................... 25
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. ...................................... 25
Section 6.02 Acceleration ............................................ 26
Section 6.03 Other Remedies .......................................... 26
Section 6.04 Waiver of Past Defaults. ................................ 27
Section 6.05 Control by Majority ..................................... 27
Section 6.06 Limitation on Suits. .................................... 27
Section 6.07 Rights of Holders of Securities to Receive Payment. ..... 27
Section 6.08 Collection Suit by Trustee .............................. 28
Section 6.09 Trustee May File Proofs of Claim. ....................... 28
Section 6.10 Priorities. ............................................. 28
Section 6.11 Undertaking for Costs. .................................. 29
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee ....................................... 29
Section 7.02 Rights of Trustee ....................................... 30
Section 7.03 Individual Rights of Trustee ............................ 30
Section 7.04 Trustee's Disclaimer .................................... 30
Section 7.05 Notice of Defaults. ..................................... 31
Section 7.06 Reports by Trustee to Holders of the Securities. ........ 31
Section 7.07 Compensation and Indemnity. ............................. 31
Section 7.08 Replacement of Trustee. ................................. 32
Section 7.09 Successor Trustee by Merger, etc. ....................... 33
Section 7.10 Eligibility; Disqualification. .......................... 33
Section 7.11 Preferential Collection of Claims Against Issuer ........ 33
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance ............................................. 33
Section 8.02 Legal Defeasance and Discharge. ......................... 33
Section 8.03 Covenant Defeasance. .................................... 34
Section 8.04 Conditions to Legal or Covenant Defeasance. ............. 34
Section 8.05 Deposited Money and Government Securities to Be
Held in Trust; Other Miscellaneous Provisions. ......... 36
Section 8.06 Repayment to Issuer. .................................... 36
Section 8.07 Reinstatement. .......................................... 37
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Securities ................ 37
Section 9.02 With Consent of Holders of Securities. .................. 38
Section 9.03 Compliance with Trust Indenture Act. .................... 39
Section 9.04 Revocation and Effect of Consents. ...................... 39
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Section 9.05 Notation on or Exchange of Securities. ................... 39
Section 9.06 Trustee to Sign Amendments, etc. ......................... 39
ARTICLE 10.
SECURITY GUARANTEES
ARTICLE 11.
SUBORDINATION OF SECURITIES
ARTICLE 12.
SECURITY
ARTICLE 13.
CONVERSION OF SECURITIES
ARTICLE 14.
SATISFACTION AND DISCHARGE
Section 14.01 Satisfaction and Discharge. .............................. 40
Section 14.02 Application of Trust Money. .............................. 41
ARTICLE 15.
MISCELLANEOUS
Section 15.01 Trust Indenture Act Controls. ........................... 41
Section 15.02 Notices. ................................................ 42
Section 15.03 Communication by Holders of Securities with Other
Holders of Securities. ................................. 43
Section 15.04 Certificate and Opinion as to Conditions Precedent ...... 43
Section 15.05 Statements Required in Certificate or Opinion. .......... 43
Section 15.06 Rules by Trustee and Agents. ............................ 43
Section 15.07 No Personal Liability of Directors, Officers,
Employees and Stockholders. ............................ 43
Section 15.08 Governing Law. .......................................... 44
Section 15.09 No Adverse Interpretation of Other Agreements. .......... 44
Section 15.10 Successors. ............................................. 44
Section 15.11 Severability ............................................ 44
Section 15.12 Counterpart Originals. .................................. 44
Section 15.13 Table of Contents, Headings, etc. ....................... 44
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INDENTURE dated as of _______ __, 20__ among [Ventas Realty, Limited
Partnership, a Delaware limited partnership and Ventas Capital Corporation, a
Delaware corporation] [Ventas, Inc., a Delaware corporation] (the "Issuer"),
[the Guarantors (as defined)] and _______________________, as trustee (the
"Trustee").
The Issuer [, the Guarantors] and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the Subordinated Debt Securities (the "Securities"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control," as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Security Registrar or Paying Agent.
"Authentication Order" means a written order of the Issuer to the Trustee signed by two Officers to authenticate Securities for original issue up to the aggregate principal amount set forth in such Authentication Order.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the corporation;
(2) with respect to a partnership, the board of directors of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such Person serving a similar function.
"Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in The City of New York are required or authorized to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office of the Trustee" will be at the address of the Trustee specified in Section 15.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
"Covenant Defeasance" has the meaning specified in Section 8.03.
"Custodian" means the Trustee, as custodian with respect to the Securities in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date of determination.
"Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 2.06 for such Securities).
"Guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any indebtedness.
"Guarantors" means any Person that executes a Security Guarantee of the Securities in accordance with the provisions of the Indenture and their respective successors and assigns; provided, however that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when its Guarantee of the Securities is released in accordance with the terms of the Indenture.
"Holder" means a Person in whose name a Security is registered.
"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 2.06.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Issuer" means [Ventas, Inc.] [Ventas Realty, Limited Partnership and Ventas Capital Corporation], and any and all successors thereto.
"Issuer Request" or "Issuer Order" means a written request or order signed in the name of the Issuer by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Legal Defeasance" has the meaning specified in Section 8.02.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and, except in connection with any Qualified CMBS Transaction, any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Investment Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Issuer by two Officers of the Issuer, one of whom must be the principal executive officer, the principal financial officer, the principal investment officer, the treasurer or the principal accounting officer of the Issuer or a general partner of an Issuer, that meets the requirements of Section 15.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 15.05 hereof. The counsel may be an employee of or counsel to the Issuer, any Subsidiary of the Issuer or the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Stated Maturity thereof.
"Paying Agent" means any Person authorized by the Issuer to pay the principal of or premium or interest on any Securities on behalf of the Issuer.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 2.06.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified CMBS Transaction" means any transaction or series of transactions entered into by Ventas, Inc. or any of its Restricted Subsidiaries pursuant to which Ventas, Inc. or any of its Restricted Subsidiaries sells, conveys or otherwise transfers to (i) an Unrestricted Subsidiary, or grants a security interest in, any real estate assets or mortgage receivables (whether now existing or arising in the future) of Ventas, Inc. or any of its Restricted Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such real estate assets or mortgage receivables, all contracts and all guarantees or other obligations in respect of such real estate assets or mortgage receivables, proceeds of such real estate assets or mortgage receivables and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving real estate assets or mortgage receivables.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 2.06.
"Responsible Officer," when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
"Securities" has the meaning assigned to it in the preamble to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Guarantee" means the Guarantee by each Guarantor of the Issuer's payment obligations under this Indenture and on the Securities, executed pursuant to the provisions of this Indenture.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 2.10.
"Senior Debt" has the meaning specified in Article 11.
"Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" means, for any Person, any corporation or other entity of which a majority of the Voting Stock is owned, directly or indirectly, by such Person or one or more other Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) Ventas Specialty I, Inc., Ventas Finance I, Inc., Ventas Specialty I, LLC and Ventas Finance I, LLC, and (ii) any other entity that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a board resolution, but only to the extent that such Subsidiary meets any additional criteria set forth in a supplement to this Indenture.
"Ventas, Inc." means Ventas, Inc., a Delaware corporation.
"Voting Stock" of any Person as of any date means the capital stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Section 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Security [and the Security Guarantees] means the Issuer [and the Guarantors], respectively, and any successor obligor upon the Securities [and the Security Guarantees], respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them.
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
ARTICLE 2.
THE SECURITIES
Section 2.01 Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a resolution of the Board of Directors of the Issuer or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a resolution of the Board of Directors of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 2.08 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Face of Security.
[Insert any legend required by the Code and the regulations thereunder.]
No. _______ $ __________
[Issuer] (herein called the "Issuer", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ___________________________, or registered assigns, the principal sum of _______________________ U.S. dollars on __________________________ [if the Security is to bear interest prior to Maturity, insert-- , and to pay interest thereon from _____________________ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on _______________ and ______________________ in each year, commencing __________________, at the rate of __% per annum, until the principal hereof is paid or made available for payment, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the ______ or ______ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in ________, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
No director, officer, employee or stockholder of Ventas, Inc. or any of its Subsidiaries, as such, will have any liability for any obligations of Ventas, Inc. or any of its Subsidiaries under the Securities or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each holder by accepting a Security waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration or the issuance of the Securities.
In Witness Whereof, the Issuer has caused this instrument to be duly executed [under its corporate seal].
Dated: [Issuer]
By_____________________________________
Title:
[SEAL]
[Attest:
------------------------------------
Title:]
Section 2.03 Form of Reverse of Security.
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This Security is one of a duly authorized issue of securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of ______________________ (herein called the "Indenture", which term shall have the meaning assigned to it in such instrument), between the Issuer[, the Guarantors] and __________________, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert-- , limited in aggregate principal amount to $________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ________________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert-- on or after ___________, ____], as a whole or in part, at
the election of the Issuer, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert-- on or
before ____________, ___%, and if redeemed] during the 12-month period beginning
__________________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
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and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on
[the relevant record dates] referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, (1) on _______ in any year commencing with the year ___ and ending with the year ___ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert-- on or after ______], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning _______ of the years indicated,
Redemption Price For Redemption
Redemption Price For Redemption Otherwise Than Through Operation of
Year Through Operation of the Sinking Fund the Sinking Fund
---- ------------------------------------- -----------------------------------
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on [the relevant record dates] referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for the redemption on _________________ in each year beginning with the year ____ and ending with the year ______ of [if applicable, insert -- not less than $___________ ("mandatory sinking fund") and not more than] $__________ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Issuer otherwise than through [if applicable, insert -- mandatory] sinking fund payments may be credited against subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise required to be made [if applicable, insert -- , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent set forth in the Indenture, subordinate and subject in right of payment to the prior payment in full in cash or certain cash equivalents of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes.
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the
Issuer's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
Subject to certain exceptions, the Indenture [the Security Guarantees] or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities, and any existing default or compliance with any provision of the Indenture[, the Security Guarantees] or the Securities may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Securities. Without the consent of any Holder of a Security, the Indenture[, the Security Guarantees] or the Securities may be amended or supplemented to cure any ambiguity, defect or inconsistency; to provide for uncertificated Securities in addition to or in place of certificated Securities; to make any other change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the legal rights under the Indenture of any such holder; or to comply with requirements of the Commission in order to effect or maintain the qualification of the applicable Indenture under the Trust Indenture Act.
As provided in and subject to the terms of the Indenture, a Holder of this Security may pursue a remedy with respect to this Indenture or the Securities only if:
(1) such Holder of a Security has given the Trustee written notice that an Event of Default has occurred and remains uncured;
(2) the Holders of at least a majority in principal amount of all outstanding Securities have made a written request that the Trustee take action because of the Default, and have offered reasonable indemnity to the Trustee against the cost and other liabilities of taking that action;
(3) the Trustee must have not taken action for 60 days after receipt of the notice and offer of indemnity; and
(4) the Holders of at least a majority in principal amount of all outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $______ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 2.06 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a Security registered, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture.
Section 2.05 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
By________________________________
Authorized Officer
Section 2.06 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a resolution of the Board of the Directors of the Issuer and, subject to Section 2.08, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.09, 2.10, 2.11, 3.06 or 9.05 and except for any Securities which,
pursuant to Section 2.08, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and premium, if any, and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Issuer and, if other than by a resolution of the Board of the Directors of the Issuer, the manner in which any election by the Issuer to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Issuer to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose;
(l) if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the Issuer or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(m) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 8.02 or Section 8.03 or both such Sections and, if other than by a resolution of the Board of Directors of the Issuer, the manner in which any election by the Issuer to defease such Securities shall be evidenced;
(p) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.04 and any circumstances in
addition to or in lieu of those set forth in Clause (b) of the last paragraph of
Section 2.10 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(q) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
(r) any addition to or change in the covenants set forth in Article Four which applies to Securities of the series;
(s) if applicable, that the Securities of the series are convertible into or exchangeable for common stock or other securities of the Issuer, the period or periods within which, the price or prices at which and the terms and conditions upon which, and the limitations and restrictions, if any, upon which, any Securities of the series shall be convertible or exchangeable, in whole or in part, into common stock or other securities of the Issuer; and
(t) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Article 9).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the resolution of the Board of the Directors of the Issuer referred to above and (subject to Section 2.08) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a resolution of the Board of Directors of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series.
Section 2.07 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 2.06. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.08 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, and may, but need not, have corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more resolutions of the Board of Directors of the Issuer as
permitted by Sections 2.01 and 2.06, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or pursuant
to the resolution of the Board of Directors of the Issuer as permitted by
Section 2.01, that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to the resolution of the Board of Directors of the Issuer as permitted by Section 2.06, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer [and Guarantors] enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.06 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 2.06 or the Issuer Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 2.14, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.09 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon Issuer Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 2.10 Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Issuer in a Place of Payment
being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Issuer in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.09, 3.06 or Article 12 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Issuer shall not be required (a) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 3.02 and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (i) such Depositary (A) has notified the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act, (ii) there shall have occurred and be continuing an Event of Default with respect to such
Global Security or (iii) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 2.06.
(c) Subject to Clause (b) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 2.09, 2.11, 3.06 or 9.05 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Section 2.11 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.12 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 2.06 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 2.13 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 2.12) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected by notice to the contrary.
Section 2.14 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer
may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by an Issuer Order.
Section 2.15 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions of Section 2.06, and
those described in this Section as not outstanding. Except as set forth in
Section 2.16 hereof, a Security does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer hold the Security.
If a Security is replaced pursuant to Section 2.11 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 or 15.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money sufficient to pay Securities payable on that date, then on and after that date such Securities will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.16 Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Issuer, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Securities that the Trustee knows are so owned will be so disregarded.
Section 2.17 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Securities, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) will have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Securities.
Section 2.18 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders of Securities and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Security Registrar, the Issuer will furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities and the Issuer shall otherwise comply with TIA ss. 312(a).
Section 2.19 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.06 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Securities pursuant to the redemption provisions of such Securities or the applicable supplemental indenture, they must furnish to the Trustee, at least 45 days (or such shorter period as is satisfactory to the Trustee) before a Redemption Date, an Officers' Certificate setting forth:
(1) the clause of this Indenture and/or such applicable supplemental indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Securities to be redeemed, plus accrued interest to the Redemption Date; and
(4) the Redemption Price.
Section 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any time, the Trustee will select Securities for redemption as follows:
(1) if the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Securities are listed; or
(2) if the Securities are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate.
In the event of partial redemption by lot, the particular Securities to be redeemed will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities not previously called for redemption.
The Trustee will promptly notify the Issuer in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities and portions of Securities selected will be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Securities of a Holder are to be redeemed, the entire outstanding amount of Securities held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the Issuer will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Securities are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 14 of this Indenture.
The notice will identify the Securities to be redeemed and will state:
(1) the Redemption Date;
(2) the Redemption Price, including the accrued interest to the Redemption Date;
(3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Security;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Securities and/or Section of the applicable supplemental indenture pursuant to which the Securities called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
At the Issuer's request, the Trustee will give the notice of redemption in the Issuer's name and at the Issuer's expense; provided, however, that the Issuer has delivered to the Trustee, at least 45 days (or such shorter period of time as is satisfactory to the Trustee) prior to the Redemption Date, an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption become irrevocably due and payable on the Redemption Date at the Redemption Price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption Price.
On the Redemption Date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price of and accrued interest, if any, on all Securities to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date, interest will cease to accrue on the Securities or the portions of Securities called for redemption. If a Security is redeemed on or after a Regular Record Date or Special Payment Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Security was registered at the close of business on such Regular Record Date or Special Payment Date. If any Security called for redemption is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Securities and in Section 4.01 hereof.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Security equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities.
The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than Ventas, Inc. or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Securities to the extent lawful; the Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee or Security Registrar) where Securities may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Securities and this Indenture may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer fails to maintain any such required office or agency or fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 15.02 hereof.
Section 4.03 Reports.
(a) Whether or not required by the Commission, so long as any Securities are outstanding, Ventas, Inc. shall furnish to the Holders of Securities and the Trustee, within the time periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if Ventas, Inc. were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by Ventas, Inc.'s certified independent accountants; and
(2) all current reports that would be required to be filed with the Commission on Form 8-K if Ventas, Inc. were required to file such reports.
In addition, whether or not required by the Commission, Ventas, Inc.
shall file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
(b) For so long as any Securities remain outstanding, Ventas, Inc. shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Issuer [and each Guarantor (to the extent that such Guarantor is so required under the TIA)] shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Issuer during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments
on account of the principal of or interest, if any, on the Securities is prohibited or if such event has occurred, a description of the event and what action the Issuer is taking or proposes to take with respect thereto.
(b) So long as any of the Securities are outstanding, the Issuer will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
Section 4.05 Corporate Existence.
Except as permitted as by Article 5, Ventas, Inc. and its Restricted Subsidiaries shall do all things necessary to preserve and keep their existence, rights and franchises; provided, however, that the existence of a Restricted Subsidiary may be terminated if the Board of Directors of Ventas, Inc. determines that it is in the best interests of Ventas, Inc. to do so.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
Ventas, Inc. may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not Ventas, Inc. is the surviving corporation); or (2) sell, assign, transfer, convey, lease (other than to an unaffiliated operator in the ordinary course of business) or otherwise dispose of all or substantially all of the properties or assets of Ventas, Inc. and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
(1) either:
(A) Ventas, Inc. is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than Ventas, Inc.) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than Ventas, Inc.) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Ventas, Inc. under the Securities and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, on a pro forma basis giving effect to such transaction or series of transactions (and treating any obligation of Ventas, Inc. incurred in connection with or as a result of such transaction or series of transactions as having been incurred at the time of such transaction), no Default or Event of Default exists; and
In addition, in the case of any lease of all or substantially all of its properties or assets (other than to an unaffiliated operator in the ordinary course of business), in one or more related transactions, to any other Person the terms of the lease must be reasonably acceptable to the Trustee or to a majority of the Holders of the Securities. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among Ventas, Inc. and its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, transfer or other disposition of all or substantially all of the properties or assets of Ventas, Inc. in accordance with Section 5.01, the successor Person formed by such consolidation or into which Ventas, Inc. is merged or to which such sale, assignment, transfer, conveyance or other disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of, Ventas, Inc. under this Indenture with the same effect as if such successor initially had been named as Ventas, Inc. herein. When a successor assumes all the obligations of its predecessor under this Indenture and the Securities following a consolidation or merger, or any sale, assignment, transfer, conveyance, transfer or other disposition of 90% or more of the assets of the predecessor in accordance with the foregoing provisions, the predecessor shall be released from those obligations.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default:"
(1) The Issuer does not pay the principal or any premium on the Securities when due and payable;
(2) The Issuer does not pay interest on the Securities within 30 days after the applicable due date;
(3) The Issuer does not deposit any sinking fund payment within 30 days after the applicable due date;
(4) The Issuer remains in breach of any other term of the Indenture for 60 days after it receive a notice of Default stating it is in breach. Either the Trustee or the Holders of more than 25% in principal amount of the Securities may send the notice;
(5) Final judgments aggregating in excess of $15.0 million (exclusive of amounts covered by insurance) are entered against the Issuer and are not paid, discharged or stayed for a period of 60 days;
(6) The Issuer defaults under any of its indebtedness in an aggregate principal amount exceeding $15.0 million after the expiration of any applicable grace period, which default results in the acceleration of the maturity of such indebtedness. Such default is not an Event of Default if the other indebtedness is discharged, or the acceleration is rescinded or annulled, within a period of 10 days after the Issuer receives notice specifying the default and requiring that it discharge the other indebtedness or cause the acceleration to be rescinded or annulled. Either the Trustee or the Holders of more than 25% in principal amount of the Securities may send the notice;
(7) Ventas, Inc. or any of its Significant Subsidiaries:
(a) commences a voluntary case under applicable Bankruptcy Law,
(b) consents to the entry of an order for relief against it in an involuntary case under applicable Bankruptcy Law,
(c) consents to the appointment of a custodian of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due.
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against Ventas, Inc. or any of its Significant Subsidiaries in an involuntary case;
(b) appoints a custodian of Ventas, Inc. or any of its Significant Subsidiaries or for all or substantially all of the property of Ventas, Inc. or any of its Significant Subsidiaries; or
(c) orders the liquidation of Ventas, Inc. or any of its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(9) any other Event of Default provided with respect to Securities of that series set forth in a supplemental indenture pursuant to Section 2.06.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (7) or (8) of
Section 6.01 hereof, with respect to Ventas, Inc. or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, all outstanding Securities will become due
and payable immediately without further action or notice. If any other Event of
Default occurs and has not been cured, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Securities may declare the
entire principal amount of all the Securities to be due and immediately payable
by written notice to the Issuer and the Trustee. Upon any such declaration, the
Securities shall become due and payable immediately. The Holders of a majority
in aggregate principal amount of the then outstanding Securities by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Security in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Securities by notice to the Trustee may on behalf of the Holders of all of the Securities waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Securities; provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Securities may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Securities may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Securities or that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Security may pursue a remedy with respect to this Indenture or the Securities only if:
(1) the Holder of a Security must give the Trustee written notice that an Event of Default has occurred and remains uncured;
(2) the Holders of at least a majority in principal amount of all outstanding Securities must make a written request that the Trustee take action because of the Default, and must offer reasonable indemnity to the Trustee against the cost and other liabilities of taking that action;
(3) the Trustee must have not taken action for 60 days after receipt of the notice and offer of indemnity; and
(4) the Holders of at least a majority in principal amount of all outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another Holder of a Security.
Section 6.07 Rights of Holders of Securities to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal, premium, if any, and interest on the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Securities and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to the extent provided in Article 11, to the holders of Senior Debt of the Issuer [and the Guarantors] in accordance with Article 11.
Second: to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any and interest, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Securities.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Issuer's use of the proceeds from the Securities or any money paid to the Issuer or upon the Issuer's direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee will mail to Holders of Securities a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities.
Section 7.06 Reports by Trustee to Holders of the Securities.
(a) Within 120 days after the end of each fiscal year beginning with the end of the fiscal year following the date of this Indenture, and for so long as Securities remain outstanding, the Trustee will mail to the Holders of the Securities a brief report dated as of such reporting date that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with [TIA ss. 313(b)(1)] and TIA ss. 313(b)(2). The Trustee will also transmit by mail all reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Securities will be mailed by the Trustee to the Issuer and filed by the Trustee with the Commission and each stock exchange on which the Securities are listed in accordance with TIA ss. 313(d). The Issuer will promptly notify the Trustee when the Securities are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Issuer [and the Guarantors] will indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Issuer [and the Guarantors] (including this Section 7.07) and defending
itself against any claim (whether asserted by the Issuer [the Guarantors] or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee will notify the Issuer promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve
the Issuer [or any of the Guarantors] of its obligations hereunder. The Issuer
[or such Guarantor] will defend the claim and the Trustee will cooperate in the
defense. The Trustee may have separate counsel and the Issuer will pay the
reasonable fees and expenses of such counsel. Neither the Issuer [nor any
Guarantor] need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Issuer [and the Guarantors] under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Issuer's payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities. Such Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA ss. 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer's obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustees.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Issuer.
The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Securities upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer's exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer [and each of the Guarantors] will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations, and the provisions of Article 11 shall cease to be effective, with respect to all outstanding Securities [(including the Security Guarantees)] on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Issuer [and the Guarantors] will be deemed to have paid and discharged the entire debt represented by the outstanding Securities [(including the Security Guarantees)], which will thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Securities, the Security Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Securities to receive payments in respect of the principal of, or interest or premium, if any, on such Securities when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Issuer's obligations with respect to such Securities under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer's [and the Guarantors'] obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of their option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuer [and the Guarantors] will, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from each of their obligations under the covenants contained in
Sections [insert section numbers] hereof and the provisions of Article 11 shall
cease to be effective with respect to the outstanding Securities on and after
the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities will thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such Securities will not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities [and Security
Guarantees], the Issuer [and the Guarantors] may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Securities [and Security Guarantees] will be unaffected
thereby. In addition, upon the Issuer's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(4) through
6.01(5) hereof will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, non-callable U.S. government or U.S. government agency notes or bonds(or depositary receipts representing these notes or bonds), or any combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the
outstanding Securities on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(2) in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(a) the Issuer has received from, or there has been published by, the IRS a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Issuer must deliver to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which Ventas, Inc. is a party or by which Ventas, Inc. is bound;
(6) At the time of such deposit:
(a) no default in the payment of any principal of or premium or interest on any Senior Debt shall have occurred and be continuing;
(b) no event of default with respect to any Senior Debt shall have resulted in such Senior Debt becoming, and continuing to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Debt has been made or duly provided for); and
(c) no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt (or a trustee on behalf of such holders) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable;
(7) the Issuer must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by Issuer with the intent of preferring the Holders of Securities over the other
creditors of Issuer with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others; and
(8) the Issuer must deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. government or U.S. government agency notes or bonds (or depositary receipts representing these notes or bonds), or any combination thereof (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Securities will be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law. Money and U.S. government or U.S. government agency notes or bonds (or depositary receipts representing these notes or bonds) so held in trust shall not be subject to the provisions of Article 11.
The Issuer will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable U.S.
government or U.S. government agency notes or bonds deposited pursuant to
Section 8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Securities.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or non-callable U.S. government or U.S. government agency notes or bonds held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Security will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. government or U.S. government agency notes or bonds in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer's [and the Guarantor's] obligations under this Indenture and the Securities and the Security Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that if the Issuer makes any payment of principal of, premium, if any, or interest on any Security following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Securities.
Notwithstanding Section 9.02 of this Indenture, the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture[, the Security Guarantees] or the Securities without the consent of any Holder of a Security:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(3) to provide for the assumption of the Issuer's obligations to Holders of Securities in the case of a merger or consolidation or sale of all or substantially all of the Issuer's assets;
(4) to add [additional] Security Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to make any other change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the legal rights under the Indenture of any such holder;
(7) to comply with requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(8) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder or any such Security with respect to such provision or (ii) shall become effective only when there is no such Security outstanding; or
(9) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.06.
Section 9.02 With Consent of Holders of Securities.
Except as provided below in this Section 9.02, the Issuer[ , the Guarantors] and the Trustee may amend or supplement this Indenture, the Security Guarantees and the Securities with the consent of the Holders of at least a majority in principal amount of the Securities then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Securities), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Securities, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Security Guarantees or the Securities may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Securities voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Securities). Section 2.15 hereof shall determine which Securities are considered to be "outstanding" for purposes of this Section 9.02.
It is not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer will mail to the Holders of Securities affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Securities then outstanding voting as a single class may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Securities. However, without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Securities held by a non-consenting Holder):
(1) reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Security or alter the provisions with respect to the redemption (but not with respect to offers to purchase) of the Securities;
(3) reduce the rate of or change the time for payment of interest on any Security;
(4) waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Securities (except a rescission of acceleration of the Securities by the Holders of at least a majority in aggregate principal amount of the Securities and a waiver of the payment Default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in the Securities;
(6) make any change in Section 6.04 or 6.07 hereof relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of, or interest or premium, if any, on the Securities;
(7) waive a redemption payment (but not an offer to purchase payment) with respect to any Security;
(8) release any Guarantor from any of its obligations under its Security Guarantee or the Indenture, except in accordance with the terms of the Indenture;
(9) subordinate the indebtedness evidenced by the Securities to any indebtedness of the Issuer other than Senior Debt.
(10) make any change in the amendment and waiver provisions set forth in clauses (1) through (9) of this Section 9.02.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities will be set forth in a amended or supplemental Indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder of a Security or subsequent Holder of a Security may revoke the consent as to its Security if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Security thereafter authenticated. The Issuer in exchange for all Securities may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Security will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
Upon the request of the Issuer accompanied by a resolution of its Board
of Directors authorizing the execution of any amended or supplemental Indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join
with the Issuer in the execution of an amended or supplemental Indenture unless
such amended or supplemental Indenture directly affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture. In executing any amended or
supplemental indenture, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 15.04 hereof, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10.
SECURITY GUARANTEES
[PROVISIONS FOR SECURITY GUARANTEES TO BE PROVIDED HERE, IF APPLICABLE.]
ARTICLE 11.
SUBORDINATION OF SECURITIES
[PROVISIONS FOR SUBORDINATION OF SECURITIES TO BE PROVIDED HERE, IF APPLICABLE.]
ARTICLE 12.
SECURITY
[SECURITY FOR SUBORDINATED DEBT SECURITIES TO BE PROVIDED HERE.]
ARTICLE 13.
CONVERSION OF SECURITIES
[PROVISIONS FOR CONVERSION OF SECURITIES TO BE PROVIDED HERE, IF APPLICABLE.]
ARTICLE 14.
SATISFACTION AND DISCHARGE
Section 14.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Securities issued hereunder, when:
(1) either:
(a) all Securities that have been authenticated (except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer) have been delivered to the Trustee for cancellation; or
(b) all Securities that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Issuer [or any Guarantor] has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. government or U.S. government agency notes or bonds, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Securities not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default (other than those resulting directly from the incurrence of indebtedness to fund such deposit) has occurred and is continuing on the date of such deposit or will occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuer [or any Guarantor] are a party or by which the Issuer [or any Guarantor] is bound;
(3) the Issuer [or any Guarantor] has paid or caused to be paid all sums payable by it under this Indenture; and
(4) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Securities at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Section 14.02 and Section 8.06 will
survive. In addition, nothing in this Section 14.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 14.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 14.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. government or U.S. government agency notes or bonds in accordance with Section 14.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer's [and any Guarantor's] obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.01; provided, however, if the Issuer has made any payment of principal of, premium, if any, or interest on any Securities because of the reinstatement of their obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. government or U.S. government agency notes or bonds held by the Trustee or Paying Agent.
ARTICLE 15.
MISCELLANEOUS
Section 15.01 Trust Indenture Act Controls.
This Indenture is subject to the provising of the TIA which are required to be part of this Indenture. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 15.02 Notices.
Any notice or communication by the Issuer[, any Guarantor] or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Issuer [and/or any Guarantor]:
Ventas, Inc.
4360 Brownsboro Road, Suite 115
Louisville, Kentucky 40207-1642
Telecopier No.: (502) 357-9001
Attention: General Counsel
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Telecopier No.: (212) 728-8111
Attention: Maurice Lefkort, Esquire
If to the Trustee:
The Issuer[, any Guarantor] or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Security Registrar. Any notice or communication will also be so mailed to any Person described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.
Section 15.03 Communication by Holders of Securities with Other Holders of Securities.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Issuer, the Trustee, the Securities Registrar and anyone else shall have the protection of TIA ss. 312(c).
Section 15.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 15.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 15.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 15.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 15.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Security Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 15.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee or stockholder of Ventas, Inc. or any of its Subsidiaries, as such, will have any liability for any obligations of Ventas, Inc. or any of its Subsidiaries under the Securities or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each holder by accepting a Security waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration or the issuance of the Securities.
Section 15.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES [AND THE SECURITY GUARANTEES] WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 15.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 15.10 Successors.
All agreements of the Issuer in this Indenture and the Securities will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. [All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Article 10.]
Section 15.11 Severability.
In case any provision in this Indenture or in the Securities is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 15.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
Section 15.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of _________, 200__ ISSUER:
[Issuer]
Title:
GUARANTORS:
[Guarantor]
Title:
TRUSTEE:
[Trustee]
Title:
Exhibit 4.22
DEPOSIT AGREEMENT*
dated as of , 200_
by and among
VENTAS, INC.
and
[NAME OF DEPOSITARY], As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
REPRESENTING INTERESTS
IN
PREFERRED STOCK
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ............................................................................. 1
Section 1.1. Certificate of Designation .............................................................. 1
Section 1.2. Certificate of Incorporation ............................................................ 1
Section 1.3. Common Stock ............................................................................ 1
Section 1.4. Company ................................................................................. 1
Section 1.5. Corporate Office ........................................................................ 2
Section 1.6. Deposit Agreement ....................................................................... 2
Section 1.7. Depositary .............................................................................. 2
Section 1.8. Depositary Share ........................................................................ 2
Section 1.9. Depositary's Agent ...................................................................... 2
Section 1.10. Exchange Debt Securities ................................................................ 2
Section 1.11. Exchange Preferred Stock ................................................................ 2
Section 1.12. Indenture ............................................................................... 2
Section 1.13. Preferred Stock ......................................................................... 2
Section 1.14. Receipt ................................................................................. 3
Section 1.15. Record Holder ........................................................................... 3
Section 1.16. Registrar ............................................................................... 3
Section 1.17. Securities Act .......................................................................... 3
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS ................................................ 3
Section 2.1. Form and Transferability of Receipts .................................................... 3
Section 2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof ....... 4
Section 2.3. Optional Redemption of Preferred Stock for Cash ......................................... 5
Section 2.4. Optional Exchange or Preferred Stock for Common Stock or Exchange Debt Securities ....... 6
Section 2.5. Transfers of Receipts ................................................................... 7
Section 2.6. Combinations and Split-ups of Receipts .................................................. 7
Section 2.7. Surrender of Receipts and Withdrawal of Preferred Stock ................................. 7
Section 2.8. Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender
and Exchange of Receipts ................................................................ 8
Section 2.9. Lost Receipts, etc ...................................................................... 9
Section 2.10. Cancellation and Destruction of Surrendered Receipts .................................... 9
Section 2.11. Conversion of Preferred Stock into Common Stock or Exchange Debt Securities ............. 9
Section 2.12. Excess Shares ........................................................................... 12
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY .............................. 12
Section 3.1. Filing Proofs, Certificates and Other Information ....................................... 12
Section 3.2. Payment of Taxes or Other Governmental Charges .......................................... 12
Section 3.3. Representations and Warranties as to Preferred Stock .................................... 13
Section 3.4. Representation and Warranty as to Receipts .............................................. 13
|
Section 3.5. Representation and Warranty as to Common Stock .......................................... 13
Section 3.6. Representation and Warranty as to Exchange Debt Securities .............................. 13
ARTICLE IV. THE PREFERRED STOCK, NOTICES ............................................................ 13
Section 4.1. Cash Distributions ...................................................................... 13
Section 4.2. Distributions Other Than Cash ........................................................... 14
Section 4.3. Subscription Rights, Preferences or Privileges .......................................... 14
Section 4.4. Notice of Dividends, Fixing of Record Date for Holders of Receipts ...................... 15
Section 4.5. Voting Rights ........................................................................... 15
Section 4.6. Changes Affecting Preferred Stock and Reclassifications, Recapitalizations, etc ......... 16
Section 4.7. Reports ................................................................................. 16
Section 4.8. Lists of Receipt Holders ................................................................ 16
ARTICLE V. THE DEPOSITARY AND THE COMPANY .......................................................... 16
Section 5.1. Maintenance of Offices, Agencies, Transfer Books by the Depositary, the Registrar ....... 16
Section 5.2. Prevention or Delay in Performance by the Depositary, the Depositary's Agents or
the Company ............................................................................. 17
Section 5.3. Obligations of the Depositary, the Depositary's Agents and the Company .................. 17
Section 5.4. Resignation and Removal of the Depositary, Appointment of Successor Depositary .......... 19
Section 5.5. Corporate Notices and Reports ........................................................... 19
Section 5.6. Indemnification by the Company .......................................................... 20
Section 5.7. Fees, Charges and Expenses .............................................................. 20
ARTICLE VI. AMENDMENT AND TERMINATION ............................................................... 20
Section 6.1. Amendment ............................................................................... 20
Section 6.2. Termination ............................................................................. 21
ARTICLE VII. MISCELLANEOUS ........................................................................... 22
Section 7.1. Counterparts ............................................................................ 22
Section 7.2. Exclusive Benefits of Parties ........................................................... 22
Section 7.3. Invalidity of Provisions ................................................................ 22
Section 7.4. Notices ................................................................................. 22
Section 7.5. Depositary's Agents ..................................................................... 23
Section 7.6. Holders of Receipts Are Parties ......................................................... 23
Section 7.7. Governing Law ........................................................................... 23
Section 7.8. Inspection of Deposit Agreement and Certificate of Designation .......................... 23
Section 7.9. Headings ................................................................................ 23
EXHIBIT A ............................................................................................. A-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ______________, 200_, by and among VENTAS, INC., a Delaware corporation (the "Company"), [NAME OF BANK], [a New York state-chartered bank], as Depositary, and all holders from time to time of Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of the Company's Preferred Stock (as hereinafter defined), with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Receipts evidencing Depositary Shares representing an interest in the Preferred Stock deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form of Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is agreed by and among the parties hereto as follows:
ARTICLE I.
DEFINITIONS
The following definitions shall apply to the respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement and the Depositary Receipts:
Section 1.1. The term "Certificate of Designation" shall mean the Certificate of Designation adopted by the Board of Directors of the Company or a duly authorized committee thereof establishing and setting forth the rights, preferences, privileges and limitations of the Preferred Stock.
Section 1.2. The term "Certificate of Incorporation" shall mean the Certificate of Incorporation, as amended from time to time, of the Company.
Section 1.3. The term "Common Stock" shall mean shares of the Company's common stock, $.25 par value per share.
Section 1.4. The term "Company" shall mean Ventas, Inc., a Delaware corporation having its principal office 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642, and its successors.
Section 1.5. The term "Corporate Office" shall mean the corporate office of the Depositary in the Borough of Manhattan, New York, New York at which at any particular time its business in respect of matters governed by this Deposit Agreement shall be administered, which, at the date of this Deposit Agreement, is located at __________________, New York, New York _______.
Section 1.6. The term "Deposit Agreement" shall mean this Agreement, as the same may be amended, modified or supplemented from time to time.
Section 1.7. The term "Depositary" shall mean [name of bank], a company having its principal office at ___________________, New York, New York ________, and any successor as depositary hereunder.
Section 1.8. The term "Depositary Share" shall mean an interest in one ________ (the "Applicable Fraction") of a share of Preferred Stock deposited with the Depositary hereunder and the same proportionate interest in any and all other property received by the Depositary in respect of such share of Preferred Stock and held under this Deposit Agreement, all as evidenced by the Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each owner of a Depositary Share is entitled, proportionately, to all the rights, preferences and privileges of the Preferred Stock represented by such Depositary Share, including the dividend, voting, conversion, redemption and liquidation rights contained in the Certificate of Designation, and to the benefits of all obligations of the Company under the Certificate of Designation.
Section 1.9. The term "Depositary's Agent" shall mean an agent
appointed by the Depositary as provided, and for the purposes specified, in
Section 7.5.
Section 1.10. The term "Exchange Debt Securities" shall mean any senior or subordinated notes, bonds, debentures and/or other evidence of indebtedness of the Company or of Ventas Realty, Limited Partnership and Ventas Capital Corporation which may be issued pursuant to the Indenture in exchange for the Preferred Stock pursuant to the terms of the Preferred Stock. A share of any Exchange Debt Securities shall mean the minimum denomination of aggregate principal amount in which such Exchange Debt Securities shall be issuable pursuant to their terms and the terms of any indenture governing such Exchange Debt Securities.
Section 1.11. The term "Exchange Preferred Stock" shall mean any shares of preferred stock of the Company which may be issued in exchange for the Preferred Stock pursuant to the terms of the Preferred Stock.
Section 1.12. The term "Indenture" shall mean the indenture relating to the Exchange Debt Securities.
Section 1.13. The term "Preferred Stock" shall mean shares of the Company's [describe class or issuance of preferred stock of the Company] which may be from time to time be deposited with Depositary hereunder pursuant to the terms of this Depositary Agreement.
Section 1.14. The term "Receipt" shall mean a Depositary Receipt issued hereunder to evidence one or more Depositary Shares.
Section 1.15. The term "record holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books maintained by the Depositary for such purpose.
Section 1.16. The term "Registrar" shall mean any bank or trust company appointed to register Receipts as herein provided.
Section 1.17. The term "Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. Receipts shall be engraved or printed or lithographed with steel-engraved borders and underlying tint and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Receipts shall be executed by the Depositary by the manual signature of a duly authorized signatory of the Depositary, provided that such signature may be a facsimile if a Registrar (other than the Depositary) shall have countersigned the Receipts by manual signature of a duly authorized signatory of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on its books each Receipt executed as provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date of issuance of the Preferred Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such Receipt) that is properly endorsed or accompanied by a properly executed instrument of transfer or endorsement shall be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until a Receipt shall be transferred on the books of the Depositary as provided in Section 2.5, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit Agreement, the Company may from time to time deposit such Preferred Stock under this Deposit Agreement by delivery to the Depositary of a certificate or certificates for the Preferred Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement and (ii) a written order of the Company directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the number of Depositary Shares representing such deposited Preferred Stock.
If required by the Depositary, Preferred Stock presented for deposit at any time, whether or not the register of stockholders of the Company is closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, that will provide for the prompt transfer to the Depositary or its nominee of any dividend or right to subscribe for additional Preferred Stock or to receive other property that any person in whose name the Preferred Stock is or has been registered may thereafter receive upon or in respect of such deposited Preferred Stock, or in lieu thereof such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for Preferred Stock to be deposited hereunder, together with the other documents specified above, the Depositary shall, as soon as transfer and registration can be accomplished, present such certificate or certificates to the registrar and transfer agent of the Preferred Stock for transfer and registration in the name of the Depositary or its nominee of the Preferred Stock being deposited. Deposited Preferred Stock shall be held by the Depositary in an account to be established by the Depositary at the Corporate Office or at such other office as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Preferred Stock to be deposited hereunder, together with the other documents specified above, and upon recordation of the Preferred Stock on the books of the Company in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to, or upon the order of, the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section 2.2, a Receipt or Receipts for the number of whole Depositary Shares representing the Preferred Stock so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Corporate Office, except that, at the request, risk and expense of any person requesting such delivery, such delivery may be made at such other place as may be designated by such person. In each case, delivery will be made only upon payment to the Depositary of all taxes and other governmental charges
and any fees payable in connection with such deposit and the transfer of the deposited Preferred Stock.
Other than in the case of splits, combinations or other reclassifications affecting the Preferred Stock, or in the case of dividends or other distributions of Preferred Stock, if any, there shall be deposited hereunder not more than the number of shares constituting the Preferred Stock as set forth in the Certificate of Designation, as such may be amended.
The Company shall deliver to the Depositary from time to time such quantities of Receipts as the Depositary may request to enable the Depositary to perform its obligations under this Deposit Agreement.
Section 2.3. Optional Redemption of Preferred Stock for Cash. Whenever the Company shall elect to redeem shares of Preferred Stock for cash, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 45 days' prior written notice of the date of such proposed redemption of Preferred Stock and of the number of such shares of Preferred Stock held by the Depositary to be redeemed. On the date of such redemption, provided that the Company shall then have paid in full to the Depositary the cash redemption price (determined pursuant to the Certificate of Designation) of the Preferred Stock deposited with the Depositary to be redeemed, the Depositary shall redeem (using the proceeds of such redemption) the number of Depositary Shares representing such redeemed Preferred Stock. The Depositary shall mail, first-class postage prepaid, notice of the redemption of Preferred Stock and the proposed simultaneous redemption of the Depositary Shares representing the Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "cash redemption date"), to the holders of record on the record date fixed for such redemption pursuant to Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as the same appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice shall affect the sufficiency of the proceedings for redemption as to other holders. The Company shall provide the Depositary with such notice, and each such notice shall state: the record date for the purposes of such redemption; the cash redemption date; the number of Depositary Shares to be redeemed; if fewer than all the Depositary Shares held by any holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; the cash redemption price; the place or places where Receipts evidencing Depositary Shares to be redeemed are to be surrendered for payment of the cash redemption price; and that from and after the cash redemption date dividends in respect of the Preferred Stock represented by the Depositary Shares to be redeemed will cease to accrue and the conversion rights in respect of such Preferred Stock will terminate at the close of business on the last business day preceding such cash redemption date. In case fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly as may be) as determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid, from and after the cash redemption date (unless the Company shall have failed to redeem the shares of Preferred Stock to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph), all dividends in respect of the shares of Preferred Stock called for redemption shall
cease to accrue, the conversion rights in respect of such Preferred Stock shall terminate at the close of business on the last business day preceding such cash redemption date, the Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the cash redemption price) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed at a cash redemption price per Depositary Share equal to the Applicable Fraction of the cash redemption price per share paid in respect of the shares of Preferred Stock pursuant to the Certificate of Designation plus any other money and other property represented by each such Depositary Share. The foregoing shall be subject further to the terms and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with payment of the cash redemption price for the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption.
The Depositary shall not be required (a) to issue, transfer or exchange any Receipts for a period beginning at the opening of business 15 days next preceding any selection of Depositary Shares and Preferred Stock to be redeemed and ending at the close of business on the day of the mailing of notice of redemption of Depositary Shares or (b) to transfer or exchange for another Receipt any Receipt evidencing Depositary Shares called or being called for redemption in whole or in part, except as provided in the preceding paragraph of this Section 2.3.
Section 2.4. Optional Exchange of Preferred Stock for Common Stock, Exchange Preferred Stock or Exchange Debt Securities. Whenever the Company shall elect to exchange all of the shares of Preferred Stock for Common Stock, Exchange Preferred Stock or Exchange Debt Securities, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 45 days' prior written notice of the date of such proposed exchange of Preferred Stock. On the date of such exchange, provided that the Company shall then have issued and deposited with the Depositary the Common Stock, Exchange Preferred Stock or Exchange Debt Securities for the Preferred Stock to be exchanged, the Depositary shall exchange the Depositary Shares representing the Preferred Stock in exchange for the Common Stock, Exchange Preferred Stock or Exchange Debt Securities issued in such exchange. The Depositary shall mail notice of such exchange and the proposed simultaneous exchange of the Depositary Shares representing the Preferred Stock to be exchanged, first-class postage prepaid, not less than 30 and not more than 60 days prior to the date fixed for exchange for such Preferred Stock and Depositary Shares (the "exchange date"), to the holders of record on the record date for such exchange (determined pursuant to Section 4.4) of the Receipts evidencing the Depositary Shares to be so exchanged, at the addresses of such holders as the same appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice shall affect the sufficiency of the proceedings for exchange as to other holders. The Company shall provide the Depositary with such notice and each such notice shall state the record date for the purposes of such exchange, the exchange date, the place or places where Receipts evidencing
Depositary Shares are to be surrendered for exchange, that dividends in respect of the Preferred Stock represented by the Depositary Shares to be exchanged will cease to accrue at the close of business on such exchange date, and that the conversion rights in respect thereof will terminate at the close of business on the last business day preceding such exchange date.
Notice having been mailed by the Depositary as aforesaid, from and after the exchange date (unless the Company shall default in issuing the Common Stock, Exchange Preferred Stock or Exchange Debt Securities in exchange for, or in making the final dividend payment on, the outstanding shares of Preferred Stock on the exchange date), all dividends in respect of the shares of Preferred Stock so called for exchange shall cease to accrue, the conversion rights in respect thereof shall terminate at the close of business on the last business day preceding such exchange date, the Depositary Shares being exchanged shall be deemed no longer to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the Common Stock, Exchange Preferred Stock or Exchange Debt Securities to be exchanged therefor) shall, to the extent of such Depositary Shares, cease and terminate and, upon surrender in accordance with said notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Company or the Depositary shall so require and the notice shall so state), such Depositary Shares shall be accepted in exchange for such Common Stock, Exchange Preferred Stock or Exchange Debt Securities at an exchange rate per Depositary Share equal to the Applicable Fraction of the exchange rate per share in respect of the shares of Preferred Stock plus all money and other property, if any, represented by each such Depositary Share, including all amounts paid by the Company in respect of dividends which on the exchange date have accrued on the shares of Preferred Stock to be so exchanged and have not theretofore been paid. The foregoing shall further be subject to the terms and conditions of the Certificate of Designation.
Section 2.5. Transfers of Receipts. Subject to the terms and conditions of this Deposit Agreement, the Depositary shall make transfers on its books from time to time of Receipts upon any surrender thereof by the holder in person or by a duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, together with evidence of the payment of any transfer taxes as may be required by law. Upon such surrender, the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.6. Combinations and Split-ups of Receipts. Upon surrender of a Receipt or Receipts at the Corporate Office or such other office as the Depositary may designate for the purpose of effecting a split-up or combination of Receipts, subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denominations requested evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered; provided, however, that the Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Section 2.7. Surrender of Receipts and Withdrawal of Preferred Stock. Any holder of a Receipt or Receipts may withdraw any or all of the Preferred Stock represented by the Depositary Shares evidenced by such Receipts and all money and other property, if any, represented by such Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such withdrawals; provided, that a holder of a Receipt or Receipts may not withdraw stock (or money and other property, if any, represented thereby) which has previously been called for redemption or exchange. After such surrender, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of shares of Preferred Stock and all such money and other property, if any, represented by the Depositary Shares evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such stock hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of whole Depositary Shares representing the number of shares of Preferred Stock to be withdrawn, the Depositary shall at the same time, in addition to such number of shares of Preferred Stock and such money and other property, if any, to be withdrawn, deliver to such holder, or (subject to Section 2.5) upon his order, a new Receipt or Receipts evidencing such excess number of whole Depositary Shares. In no event will fractional shares of stock be distributed by the Depositary. Delivery of the Preferred Stock and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer.
If the Preferred Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal of Preferred Stock, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal of such shares of Preferred Stock be properly endorsed in blank or accompanied by a properly executed instrument of transfer or endorsement in blank.
The Depositary shall deliver the Preferred Stock and the money and other property, if any, represented by the Depositary Shares evidenced by Receipts surrendered for withdrawal at the Corporate Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder.
Section 2.8. Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, transfer, split-up, combination, surrender or exchange of any Receipt or the exercise of any conversion right referred to in Section 2.11, the Depositary, any of the Depositary's Agents or the Company may require any or all of the following: (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any tax or other governmental charge with respect thereto (including any such tax or charge with respect to the Preferred Stock being deposited or withdrawn (provided that the Company shall pay any tax or other governmental charges arising solely from the existence of this Deposit Agreement and any documentary, stamp or similar issue or transfer tax due on the issue of Common Stock upon conversion; and provided further that the holder of such Receipt shall pay the amount of any tax which is due if the shares are to be issued in a name other than the name of such holder)); (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such regulations, if any, as the Depositary or the Company
may establish consistent with the provisions of this Deposit Agreement.
The deposit of Preferred Stock may be refused, the delivery of Receipts against Preferred Stock may be suspended, the transfer of Receipts may be refused, the exercise of any conversion right referred to in Section 2.11 may be suspended, and the transfer, split-up, combination, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Company is closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under this Deposit Agreement any shares of Preferred Stock that are required to be registered under the Securities Act and are not so registered and the Company shall deliver to the Depositary written notice that, at the time of deposit, a registration statement under the Securities Act is in effect as to such shares of Preferred Stock.
Section 2.9. Lost Receipts, etc. In case any Receipt shall be mutilated or destroyed or lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt or in lieu of and in substitution for such destroyed, lost or stolen Receipt; provided that, the holder thereof provides the Depositary with (i) evidence satisfactory to the Depositary of such destruction, loss or theft of such Receipt, of the authenticity thereof and of his ownership thereof, (ii) reasonable indemnification satisfactory to the Depositary and (iii) payment of any expense (including fees, charges and expenses of the Depositary) in connection with such execution and delivery.
Section 2.10. Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy such Receipts so cancelled.
Section 2.11. Conversion of Preferred Stock into Common Stock, Exchange Preferred Stock or Exchange Debt Securities. It is understood and agreed that the Depositary Shares are not convertible into the Common Stock or any other securities or property of the Company. Nevertheless, as a matter of convenience, the Company hereby agrees to accept (or to cause its conversion agent to accept) the delivery of Receipts for the purpose effecting conversions of the Preferred Stock utilizing the same procedures as those provided for delivery of Preferred Stock certificates to effect such conversions in accordance with the terms and conditions of the Certificate of Designation; provided, however, that only whole Depositary Shares may be so submitted for conversion.
Receipts may be surrendered with written instructions to the Depositary to instruct the Company to cause the conversion of any specified number of whole or fractional shares of Preferred Stock represented by the Depositary Shares evidenced by such Receipts into the number of whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, obtained by dividing the aggregate liquidation preference of such
Depositary Shares by the Conversion Price (as such term is defined in the Certificate of Designation) then in effect, as such Conversion Price may be adjusted by the Company from time to time as provided in the Certificate of Designation. Subject to the terms and conditions of this Deposit Agreement and the Certificate of Designation, a holder of a Receipt or Receipts evidencing Depositary Shares representing whole or fractional shares of Preferred Stock may surrender such Receipt or Receipts to the Depositary at the Depositary's Office or to such office or to such Depositary's Agents as the Depositary may designate for such purpose, together with a notice of conversion thereof duly completed and executed (a "Notice of Conversion"), thereby directing the Depositary to instruct the Company to cause the conversion of the number of shares or fractions thereof of underlying Preferred Stock specified in such Notice of Conversion into whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be. In the event that a holder delivers to the Depositary for conversion a Receipt or Receipts which in the aggregate are convertible into less than one whole share of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, or any number of whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities plus an excess constituting less than one whole share of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, the holder shall receive payment in lieu of such fractional share of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, otherwise issuable in accordance with the last paragraph of this Section 2.11. If more than one Receipt shall be delivered for conversion at one time by the same holder, the number of whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, issuable upon conversion thereof shall be computed on the basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with a Notice of Conversion, duly completed and executed, directing the Depositary to instruct the Company to cause the conversion of a specified number of shares or fractions thereof of Preferred Stock, the Depositary shall, on the date of receipt of such Notice of Conversion, instruct the Company (i) to cause the conversion of the Depositary Shares evidenced by the Receipts so surrendered for conversion as specified in the written Notice of Conversion to the Depositary and (ii) to cause the delivery to the holder or holders of such Receipts of a certificate or certificates evidencing the number of whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, and the amount of money, if any, to be delivered to the holders of Receipts surrendered for conversion in payment of such fractional share of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, otherwise issuable. The Company shall, as promptly as practicable after receipt thereof, cause the delivery to such holder or holders of (i) a certificate or certificates evidencing the number of whole shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, into which the Preferred Stock represented by the Depositary Shares evidenced by such Receipt or Receipts has been converted and (ii) any money or other property to which the holder or holders are entitled. The person or persons in whose name or names any certificate or certificates for shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at the close of business on the date such Receipt or Receipts shall have been surrendered to and a Notice of Conversion received by the Depositary, unless the stock transfer books of the Company shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record on the next succeeding day on which such stock
transfer books are open. Upon such conversion, the Depositary (i) shall deliver to the holder a Receipt evidencing the number of Depositary Shares, if any, which such holder has elected not to convert in excess of the number of Depositary Shares representing Preferred Stock which has been so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts surrendered for conversion and (ii) shall deliver for cancellation to the transfer agent for the Preferred Stock the shares of Preferred Stock represented by the Depositary Shares evidenced by the Receipts so surrendered and so converted.
If any Preferred Stock shall be called by the Company for redemption, the Depositary Shares representing such Preferred Stock may be converted into Common Stock, Exchange Preferred Stock or Exchange Debt Securities as provided in this Deposit Agreement until and including, but not after, the close of business on the business day preceding Redemption Date unless the Company shall default in making payment of the amount payable upon such redemption. Upon receipt by the Depositary of a Receipt or Receipts representing any Preferred Stock called for redemption, together with a properly completed and executed Notice of Conversion, the shares of Preferred Stock held by the Depositary represented by such Depositary Shares for which conversion is requested shall be deemed to have been received by the Company for conversion.
The holder of record of a Receipt on a dividend record date shall be entitled to receive the dividend payable with respect to such Receipt notwithstanding that such Receipt shall have been surrendered to the Depository, together with a Notice of Conversion with instructions to the Depositary for conversion of the underlying Preferred Stock evidenced thereby during the period between the opening of business on any dividend record date and the close of business on the corresponding dividend payment date.
Upon the conversion of any shares of Preferred Stock for which a Notice of Conversion has been received by the Depositary, all dividends in respect of such Depositary Shares shall cease to accrue, such Depositary Shares shall be deemed no longer outstanding, all rights of the holder of the Receipt with respect to such Depositary Shares (except the right to receive the Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, any cash payable with respect to any fractional shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities, as the case may be, as provided herein and any cash payable to such holder of record on account of accrued dividends in respect of the Preferred Stock so converted and any Receipts evidencing Depositary Shares not so converted) shall terminate, and the Receipt evidencing such Depositary Shares shall be cancelled in accordance with Section 2.10 hereof.
No fractional shares of Common Stock, Exchange Preferred Stock or Exchange Debt Securities shall be issuable upon conversion of Preferred Stock underlying the Depositary Shares. If, except for the provisions of this Section 2.11 and the Certificate of Designation, any holder of Receipts surrendered with instructions to the Depositary for conversion of the underlying Preferred Stock would be entitled to a fractional share of Common Stock, Exchange Preferred Stock or Exchange Debt Securities upon such conversion, the Company shall cause to be delivered to such holder an amount in cash for such fractional share determined in accordance with the Certificate of Designation.
Section 2.12. Excess Shares. Without limiting any of the other terms and provisions of this Agreement, the Depositary Shares and Receipts shall be subject to Article XII of the Company's Certificate of Incorporation.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other Information. Any person presenting Preferred Stock for deposit or any holder of a Receipt may be required from time to time to file such proof of residence or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold or delay the delivery of any Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of the Preferred Stock represented by the Depositary Shares evidenced by any Receipt, the distribution of any dividend or other distribution, the sale of any rights or of the proceeds thereof, the exercise of any conversion right referred to in Section 2.11, the delivery of any Common Stock or Exchange Debt Securities upon such conversion or the delivery of any Common Stock or Exchange Debt Securities pursuant to Section 2.4 upon such exchange until such proof or other information is filed, such certificates are executed or such representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental Charges. If any tax or other governmental charge shall become payable by or on behalf of the Depositary with respect to any Receipt, the Depositary Shares evidenced by such Receipt, the Preferred Stock (or any fractional interest therein) represented by such Depositary Shares, the exercise of any conversion right referred to in Section 2.11 or any transaction referred to in Section 4.6, such tax (including transfer, issuance or acquisition taxes, if any) or governmental charge shall be payable by the holder of such Receipt; provided that, the Company shall pay any tax or other governmental charges arising solely from the existence of this Deposit Agreement and any documentary, stamp or similar issue or transfer tax due on the issue of Common Stock upon conversion; and provided further, that the holder of such Receipt shall pay the amount of any tax which is due if the shares are to be issued in a name other than the name of such holder. Until such payment is made, transfer of any Receipt or any withdrawal of the Preferred Stock or money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused, any dividend or other distribution may be withheld, such conversion right may be refused and any part or all of the Preferred Stock or other property represented by the Depositary Shares evidenced by such Receipt may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder prior to such sale). Any dividend or other distribution so withheld and the proceeds of any such sale may be applied to any payment of such tax or other governmental charge, the holder of such Receipt remaining liable for any deficiency. In the event the Depositary is required to pay any such amounts, the Company shall reimburse the Depositary for payment thereof upon the request of the Depositary and the Depositary shall, upon the Company's request and as instructed by the Company, pursue its rights against such holder at the Company's expense.
Section 3.3. Representations and Warranties as to Preferred Stock. In the case of the initial deposit of the Preferred Stock, the Company and, in the case of subsequent deposits
thereof, each person so depositing Preferred Stock under this Deposit Agreement shall be deemed thereby to represent and warrant that such Preferred Stock and each certificate therefor are valid and that the person making such deposit is duly authorized to do so. The Company hereby further represents and warrants that the Preferred Stock, when issued, will be validly issued, fully paid and nonassessable. Such representations and warranties shall survive the deposit of the Preferred Stock and the issuance of Receipts.
Section 3.4. Representation and Warranty as to Receipts. The Company hereby represents and warrants that the Receipts, if any, when issued, will represent legal and valid interests in the Preferred Stock. Such representation and warranty shall survive the deposit of the Preferred Stock and the issuance of Receipts.
Section 3.5. Representation and Warranty as to Common Stock. The Company hereby represents and warrants that the Common Stock issuable upon conversion of the Preferred Stock, if any, when issued, will be duly authorized, validly issued, fully paid and nonassessable. Such representation and warranty shall survive the conversion of the Preferred Stock into such Common Stock.
Section 3.6. Representation and Warranty as to Exchange Preferred Stock. The Company hereby represents and warrants that the Exchange Preferred Stock issuable upon conversion of the Preferred Stock, if any, when issued, will be duly authorized, validly issued, fully paid and nonassessable. Such representation and warranty shall survive the conversion of the Preferred Stock into such Exchange Preferred Stock.
Section 3.7. Representation and Warranty as to Exchange Debt Securities. The Company hereby represents and warrants that the Exchange Debt Securities issuable upon conversion of the Preferred Stock, if any, when issued, will be duly authorized and constitute legal, valid and binding obligations of the issuers and guarantors thereof, in accordance with their terms and the Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws now or hereinafter in effect affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). Such representation and warranty shall survive the conversion of the Preferred Stock into such Exchange Debt Securities.
ARTICLE IV.
THE PREFERRED STOCK, NOTICES
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Preferred Stock,
including any cash received upon redemption of any shares of Preferred Stock
pursuant to Section 2.3, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to withhold and
does withhold from any cash dividend or other cash distribution in respect of the Preferred Stock an amount on account of taxes or as otherwise required by law, regulation or court order, the amount made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any owner of Depositary Shares a fraction of one cent and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding.
Section 4.2. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the Preferred
Stock, the Depositary shall, subject to Section 3.2, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Company after consultation with the
Depositary, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as otherwise
required by law, regulation or court order), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash.
Section 4.3. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts if the Company so directs in such
manner as the Company shall instruct (including by the issue to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, the Depositary shall then, if so instructed
by the Company, and if applicable laws or the terms of such rights, preferences
or privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees that it will promptly file a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its commercially reasonable best efforts to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such a registration statement shall have become effective or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees to use its commercially reasonable best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Fixing of Record Date for Holders of Receipts. Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the Preferred Stock, or whenever the Depositary shall receive notice of (i) any meeting at which holders of Preferred Stock are entitled to vote or of which holders of Preferred Stock are entitled to notice or (ii) any election on the part of the Company to redeem any shares of Preferred Stock, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Stock) for the determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or whose Depositary Shares are to be so redeemed.
Section 4.5. Voting Rights. Upon receipt of notice of any meeting at which the holders of Preferred Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice, which shall be provided by the Company and which shall contain (i) such information as is contained in such notice of meeting, (ii) a statement that the holders of Receipts at the close of business on a specified record date fixed pursuant to Section 4.4 will be entitled, subject to any applicable provision of law, the Certificate of Incorporation or the Certificate of Designation, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Preferred Stock represented by their respective Depositary Shares and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of a holder of a Receipt on such record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted the amount of Preferred Stock represented by the Depositary Shares evidenced by such Receipt in accordance with the instructions set forth in such request. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Preferred Stock or cause such Preferred Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from voting to the extent of the Preferred Stock represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Preferred Stock and Reclassifications, Recapitalizations, etc. Upon any split-up, consolidation or any other reclassification of Preferred Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party or sale of all or substantially all of the Company's assets, the Depositary shall, upon the instructions of the Company, treat any shares of stock or other securities or property (including cash) that shall be received by the Depositary in exchange for or upon conversion of or in respect of the Preferred Stock as new deposited property under this Deposit Agreement, and Receipts then outstanding shall thenceforth represent the proportionate interests of holders thereof in the new deposited property so received in exchange for or upon conversion or in respect of such Preferred Stock. In any such case the Depositary may, in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited property. Anything to the contrary herein notwithstanding, holders of Receipts shall have the right from and after the effective date of any such change in par or stated value, split-up, combination or other reclassification of the Preferred Stock or any such recapitalization, reorganization, merger, amalgamation or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares of stock and any other securities and property and cash into which the Preferred Stock represented by such Receipts might have been converted or for which such Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction.
Section 4.7. Reports. The Depositary shall make available for inspection by holders of Receipts at the Corporate Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Company that are both received by the Depositary as the holder of Preferred Stock and made generally available to the holders of Preferred Stock.
Section 4.8. Lists of Receipt Holders. Promptly upon request by the Company, the Depositary shall, at its own expense, up to four times per calendar year, furnish to the Company a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. If the Company shall make more than four such requests during any calendar year, then in each case the Depositary shall promptly upon the Company's request furnish it with such a list as of a recent date, but the cost of complying with each such request shall be borne by the Company.
ARTICLE V.
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies, Transfer Books by the Depositary, the Registrar. Upon execution of this Deposit Agreement in accordance with its terms, the Depositary shall maintain at the Corporate Office facilities for the execution and
delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Preferred Stock and at the offices of the Depositary's Agents, if any, facilities for the delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Preferred Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the registration and transfer of Receipts. Within a reasonable time after a request by a holder of Receipts, the Depositary shall make available for inspection at the Corporate Office such books for inspection by the record holders of Receipts as provided by applicable law. The Depositary shall consult with the Company upon receipt of any request for inspection. The Depositary may close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred Stock represented by such Depositary Shares shall be listed on the New York Stock Exchange, Inc., the Depositary may, with the approval of the Company, appoint a Registrar for registry of such Receipts or Depositary Shares in accordance with the requirements of such Exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such Exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, such Depositary Shares or such Preferred Stock are listed on one or more other stock exchanges, the Depositary will, at the request and expense of the Company, arrange such facilities for the delivery, transfer, surrender and exchange of such Receipts, such Depositary Shares or such Preferred Stock as may be required by law or applicable stock exchange regulations.
Section 5.2. Prevention or Delay in Performance by the Depositary, the Depositary's Agents or the Company. Neither the Depositary nor any Depositary's Agent nor the Company shall incur any liability to any holder of any Receipt, if by reason of any provision of any present or future law or regulation thereunder of the United States of America or of any other governmental authority or, in the case of the Depositary or the Depositary's Agent, by reason of any provision, present or future, of the Certificate of Incorporation or the Certificate of Designation or, in the case of the Company, the Depositary or the Depositary's Agent, by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, any Depositary's Agent or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent or the Company incur any liability to any holder of a Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of this Deposit Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement.
Section 5.3. Obligations of the Depositary, the Depositary's Agents and the Company. Neither the Depositary nor any Depositary's Agent nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement or any Receipt to holders of Receipts other than that each of them agrees to act in good faith and without gross
negligence and willful misconduct in the performance of such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to Preferred Stock, Depositary Shares or Receipts that in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company shall be liable for any action or any failure to act by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Preferred Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, any Depositary's Agent and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Depositary, its parent, affiliate, or subsidiaries and any Depositary's Agent may own, buy, sell or deal in any class of securities of the Company and its affiliates and in Receipts or Depositary Shares or become pecuniarily interested in any transaction in which the Company or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary or the Depositary's Agent hereunder. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates or act in any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall be deemed to be an "issuer" of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary's Agent are acting only in a ministerial capacity as Depositary for the Preferred Stock; provided, however, that the Depositary agrees to comply with all information reporting and withholding requirements applicable to it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents) nor any Depositary's Agent makes any representation or has any responsibility as to the validity of the Registration Statement pursuant to which the Depositary Shares are registered under the Securities Act, the Preferred Stock, the Depositary Shares, the Receipts (except its counter-signature thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made therein or herein; provided, however, that the Depositary is responsible for its representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts, which can be taken as a statement of the Company summarizing certain provisions of this Deposit Agreement. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity, genuineness or sufficiency of any Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the
validity or sufficiency of the Receipts, as to the validity or sufficiency of this Deposit Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receipts in and to the Depositary Shares. The Depositary shall not be accountable for the use or application by the Company of the Depositary Shares or the Receipts or the proceeds thereof.
Section 5.4. Resignation and Removal of the Depositary, Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If a successor Depositary shall not have been appointed in 60 days, the resigning Depositary may petition a court of competent jurisdiction to appoint a successor depositary. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all rights, title and interest in the Preferred Stock and any moneys or property held hereunder to such successor and shall deliver to such successor a list of the record holders of all outstanding Receipts. Any successor depositary shall promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor depositary may execute the Receipts either in the name of the predecessor depositary or in the name of the successor depositary.
Section 5.5. Corporate Notices and Reports. The Company agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt thereof, transmit to the record holders of Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts are listed or by the Certificate of Incorporation and the Certificate of Designation to be furnished by the Company to holders of Preferred Stock. Such transmission will be at the Company's expense and the Company will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will
transmit to the record holders of Receipts at the Company's expense such other documents as may be requested by the Company.
Section 5.6. Indemnification by the Company. The Company agrees to indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any liability, costs and expenses (including reasonable attorneys' fees) that may arise out of or in connection with its acting as Depositary, Depositary's Agent or Registrar, respectively, under this Deposit Agreement and the Receipts, except for any liability arising out of negligence or bad faith on the part of any such person or persons.
Section 5.7. Fees, Charges and Expenses. No fees, charges and expenses of the Depositary or any Depositary's Agent hereunder or of any Registrar shall be payable by any person other than the Company, except for any taxes and other governmental charges and except as provided in this Deposit Agreement. If the Depositary incurs fees, charges or expenses for which it is not otherwise liable hereunder at the election of a holder of a Receipt or other person, such holder or other person will be liable for such fees, charges and expenses. All other fees, charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid upon consultation and agreement between the Depositary and the Company as to the amount and nature of such fees, charges and expenses. The Depositary shall present its statement for fees, charges and expenses to the Company once every three months or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI.
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect that they may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, registrar or transfer agent) which (i) shall materially and adversely alter the rights of the holders of Receipts, (ii) would be materially and adversely inconsistent with the rights granted to the holders of the Preferred Stock pursuant to the Certificate of Designation or (iii) adds to or increases the fees and charges payable by the holders of Receipts as provided for herein or in the Receipts shall be effective unless such amendment shall have been approved by the holders of at least a majority of the Depositary Shares then outstanding. Any such amendment referred to in clause (i), (ii) or (iii) of the preceding sentence shall not become effective as to outstanding Receipts until the expiration of 90 days after notice of such amendment shall have been given to the record holders of outstanding Receipts. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of Sections 2.3, 2.7, 2.8 and 2.11 and Article III, of any owner of any Depositary Shares to surrender the Receipt evidencing such Depositary Shares with instructions
to the Depositary to deliver to the holder the Preferred Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law.
Section 6.2. Termination.
Whenever (i) so directed by the Company and approved by the holders of at least a majority of the Depositary Shares then outstanding or (ii) advised in writing by the Company that the termination of this Deposit Agreement is necessary to preserve the Company's status as a " real estate investment trust, " as such term is defined in the Internal Revenue Code of 1986, as amended, the Depositary will terminate this Deposit Agreement by mailing notice of such termination to the record holders of all Receipts then outstanding at least 60 days prior to the date fixed in such notice for such termination. The Depositary may likewise terminate this Deposit Agreement if at any time 60 days shall have expired after the Depositary shall have delivered to the Company a written notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4.
If any Receipts shall remain outstanding after the date of termination of this Deposit Agreement, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend the distribution of dividends to the holders thereof and shall not give any further notices (other than notice of such termination) or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Preferred Stock, shall sell rights, preferences or privileges as provided in this Deposit Agreement and shall continue to deliver the Preferred Stock and any money and other property represented by Receipts upon surrender thereof by the holders thereof. At any time after the expiration of two years from the date of termination, the Depositary may sell Preferred Stock then held hereunder at public or private sale, at such places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such sale, together with any money and other property held by it hereunder, without liability for interest, for the benefit, pro rata in accordance with their holdings, of the holders of Receipts that have not theretofore been surrendered. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement except to account for such net proceeds and money and other property.
This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.3,
(ii) all outstanding Depositary Shares have been exchanged pursuant to Section
2.4, (iii) each share of Preferred Stock shall have been converted into shares
of Common Stock, Exchange Preferred Stock or Exchange Debt Securities not
represented by Receipts pursuant to Section 2.11, or (iv) there shall have been
made a final distribution in respect of the Preferred Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.1
or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement (including under Section 2.11) except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Sections 5.6 and 5.7.
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by telecopier shall be as effective as delivery of a manually executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Corporate Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt.
Section 7.2. Exclusive Benefits of Parties. This Deposit Agreement is for the exclusive benefit of the parties hereto and their respective successors hereunder and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. Furthermore, in lieu of any such invalid or unenforceable term or provision, there shall be added as a part of this Depositary Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
Section 7.4. Notices. Any notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to the Company at 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642, Attention: General Counsel (fax number (502) 357-9001), or at any other place to which the Company may have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary or, if such holder shall have filed with the Depositary in a timely manner a written request that notices intended for such holder be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or telex or telecopier message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telex or telecopier message received by it from the other or from any holder of a Receipt, notwithstanding that such telegram or telex or telecopier message shall not subsequently be confirmed by letter as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. The Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and Transfer Agent in respect of the Receipts and the Depositary hereby accepts such appointments.
Section 7.6. Holders of Receipts Are Parties. The holders of Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the law of the State of New York.
Section 7.8. Inspection of Deposit Agreement and Certificate of Designation. Copies of this Deposit Agreement and the Certificate of Designation shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or to have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Ventas, Inc. and [Name of Bank] have duly executed this Deposit Agreement as of the day and year first above set forth and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof.
VENTAS, INC.
By:___________________________
Attest: Authorized Officer
[NAME OF BANK]
|
By:___________________________ Attest: Authorized Signatory
EXHIBIT A/1/
FORM OF
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING ONE ______ OF A SHARE OF
PREFERRED STOCK
($.__ par value per share)
OF
VENTAS, INC.
(Incorporated under the Laws of the State of Delaware)
No. . . . . . . . . . . . . Depositary Shares (each Depositary Share represents one [fraction] of a share of Preferred Stock ($.__ par value per share))
1. [Name of Bank], with an office at the time of the execution of the Deposit Agreement (as defined below) at ___________________________ (or together with the corporate office of the Depositary in the Borough of Manhattan, New York, New York at which its business in respect of matters governed by the Deposit Agreement is administered at any later time, being at such time, the "Corporate Office"), as Depositary (the "Depositary"), hereby certifies that __________________ is the registered owner of Depositary Shares (the "Depositary Shares"), each Depositary Share representing one [fraction] of a share of Preferred Stock, $.__ par value per share (the "Preferred Stock"), of Ventas, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Company") and the same proportionate interest in any and all other property received by the Depositary in respect of such shares of Preferred Stock and held by the Depositary under the Deposit Agreement. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share is entitled, proportionately, to all the rights, preferences and privileges of the Preferred Stock represented thereby, including the dividend, voting, conversion, redemption and liquidation rights contained in the Certificate of Designation adopted by the Board of Directors of the Company or a duly authorized committee thereof establishing the rights, preferences, privileges and limitations of the Preferred Stock (the "Certificate of Designation"), copies of which are on file at the Corporate Office. The Depositary will furnish without charge to any registered owner of Depositary Shares who so requests, copies of the Restated Certificate of Incorporation of the Company, the Deposit Agreement and the Certificate of Designation.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which this Receipt is one, are made available upon the terms and conditions set forth in the Deposit Agreement, dated as of _________, ____ (the "Deposit Agreement"), among the Company, the Depositary and all holders from time to time of Receipts. The Deposit Agreement (copies of which are on file at the Corporate Office and at the office of any Depositary's Agent) sets forth the rights of holders of Receipts and the rights and duties of the Depositary. The statements made on the face and the reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are subject to the detailed provisions thereof, to which reference is hereby made. Unless otherwise expressly herein provided, all defined terms used herein shall have the meanings ascribed thereto in the Deposit Agreement.
3. Optional Redemption of Preferred Stock for Cash. Whenever the Company shall elect to redeem shares of Preferred Stock for cash, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 45 days' prior written notice of the date of such proposed redemption of Preferred Stock and of the number of shares of Preferred Stock held by the Depositary to be redeemed. On the date of such redemption, provided that the Company shall then have paid in full to the Depositary the cash redemption price (determined pursuant to the Certificate of Designation) of the Preferred Stock deposited with the Depositary to be redeemed, the Depositary shall redeem (using the proceeds of such redemption) the number of Depositary Shares representing such redeemed Preferred Stock. The Depositary shall mail notice of the redemption of Preferred Stock and the proposed simultaneous redemption of Depositary Shares representing the Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "cash redemption date"), to the holders of record on the record date fixed for such redemption as provided in Paragraph 14 below of the Receipts evidencing Depositary Shares to be redeemed. In case fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly as may be) as determined by the Depositary. Notice having been mailed as aforesaid, from and after the cash redemption date (unless the Company shall have failed to redeem the shares of Preferred Stock to be redeemed by it on such date), all dividends in respect of the shares of Preferred Stock called for redemption shall cease to accrue, the Depositary Shares called for redemption shall be deemed no longer to be outstanding, all rights of holders of Receipts evidencing such Depositary Shares (except the right to receive the cash redemption price) shall, to the extent of such Depositary Shares, cease and terminate and from and after the last business day preceding such cash redemption date the conversion rights in respect of such Preferred Stock shall terminate at the close of business on the last business day preceding such cash redemption date. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed at the cash redemption price therefor specified in said notice, plus any other money and other property. The foregoing shall be subject further to the terms and conditions of the Certificate of Designation. If fewer than all of the Depositary Shares evidenced by this Receipt are called for redemption, the Depositary will deliver to the holder of this Receipt upon its surrender to the Depositary, together with payment of the cash redemption price for the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption.
4. Optional Exchange of Preferred Stock for Common Stock, Exchange Preferred Stock or Exchange Debt Securities. Whenever the Company shall elect to exchange all of the shares of Preferred Stock for Common Stock, Exchange Preferred Stock or Exchange Debt Securities, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 45 days' prior written notice of the date of such proposed exchange of Preferred Stock. On the date of such exchange, provided that the Company shall then have issued and deposited with the Depositary the Common Stock, Exchange Preferred Stock or Exchange Debt Securities for the Preferred Stock to be so exchanged, the Depositary shall exchange the Depositary Shares representing the Preferred Stock for the Common Stock, Exchange Preferred Stock or Exchange Debt Securities issued in such exchange. The Depositary shall mail notice of such exchange and the proposed simultaneous exchange of the Depositary Shares representing the Preferred Stock to be exchanged, not less than 30 and not more than 60 days prior to the date fixed for exchange for such Preferred Stock and Depositary Shares (the "exchange date"), to the holders of record on the record date for such exchange (determined as provided in Paragraph 15 below) of the Depositary Shares to be so exchanged. Notice having been mailed by the Depositary as aforesaid, from and after the exchange date (unless the Company shall default in issuing the Common Stock, Exchange Preferred Stock or Exchange Debt Securities in exchange for, or in making the final dividend payment on, the outstanding shares of Preferred Stock on the exchange date), all dividends in respect of the shares of Preferred Stock so called for exchange shall cease to accrue, the conversion rights in respect thereof will terminate, the Depositary Shares being exchanged shall be deemed no longer to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the Common Stock, Exchange Preferred Stock or Exchange Debt Securities) shall, to the extent of such Depositary Shares, cease and terminate and upon surrender in accordance with said notice of the Receipt evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Company or the Depositary shall so require and the notice shall so state), such Depositary Shares shall be accepted by the Depositary for such Common Stock, Exchange Preferred Stock or
Exchange Debt Securities at an exchange rate specified in said notice, plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the exchange date have accrued on the shares of Preferred Stock to be so exchanged and have not theretofore been paid. The foregoing shall further be subject to the terms and conditions of the Certificate of Designation.
5. Surrender of Receipts and Withdrawal of Preferred Stock, Conversion of Preferred Stock. Upon surrender of this Receipt to the Depositary at the Corporate Office, or at such other offices as the Depositary may designate, and subject to the provisions of the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain delivery, to or upon the order of such holder, any or all of the Preferred Stock (including fractional shares of Preferred Stock) and all money and other property, if any, at the time represented by the Depositary Shares evidenced by this Receipt; provided, that a holder of a Receipt or Receipts may not withdraw stock (or money and other property, if any, represented thereby) which has previously been called for redemption and exchange. In the event this Receipt shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number (whole or fractional) of shares of Preferred Stock to be withdrawn, the Depositary shall, in addition to such number (whole or fractional) of shares of Preferred Stock and such money and other property, if any, to be withdrawn, deliver, to or upon the order of such holder, a new Receipt or Receipts evidencing such excess number of whole Depositary Shares, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such stock under the Deposit Agreement or to receive Depositary Shares therefor.
It is understood and agreed that the Depositary Shares are not convertible into the Common Stock or any other securities or property of the Company. Nevertheless, as a matter of convenience, the Company has agreed in Section 2.11 of the Deposit Agreement to accept (or cause its conversion agent to accept) the delivery of Receipts for the purpose of effecting conversions of the Preferred Stock utilizing the same procedures as those provided for delivery of Preferred Stock certificates to effect such conversions in accordance with the terms and conditions of the Certificate of Designation; provided, however, that only whole Depositary Shares may be so submitted for conversion. If fewer than all of the Depositary Shares represented by this Receipt are to be converted, the Company shall instruct the Depositary to issue a new Receipt or Receipts for the Depositary Shares not to be converted. For this purpose, the holder of this Receipt may surrender this Receipt to the Company, in care of the Depositary at the Corporate Office or at such other office as the Company may from time to time designate for such purpose, together with (i) a duly completed and executed Notice of Conversion. In all cases the foregoing shall be conditioned upon compliance in full by the holder of this Receipt with the terms and conditions of the Certificate of Designation and of the Deposit Agreement.
6. Transfers, Split-ups, Combinations. This Receipt is transferable on the books of the Depositary upon surrender of this Receipt to the Depositary, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, and upon such transfer the Depositary shall sign and deliver a Receipt to or upon the order of the person entitled thereto, as provided in the Deposit Agreement. This Receipt may be split into other Receipts or combined with other Receipts into one Receipt evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered; provided, however, that the Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
7. Conditions to Signing and Delivery, Transfer, etc., of Receipts. Prior
to the execution and delivery, transfer, split-up, combination, surrender or
exchange of this Receipt or the exercise of any conversion right referred to in
Section 2.11 of the Deposit Agreement, the Depositary, any of the Depositary's
Agents or the Company, may require any or all of the following: (i) payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Preferred Stock being deposited or withdrawn (provided that the
Company shall pay any tax or other governmental charges arising solely from the
existence of the Deposit Agreement and any documentary, stamp or similar issue
or transfer tax due on the issue of Common Stock upon conversion; and provided
further that the holder of such Receipt shall pay the amount of any tax which is
due if the shares are to be issued in a name other than the name of such
holder); (ii) proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such regulations, if any, as the Depositary
or the Company may establish consistent with the Deposit Agreement. Any person
presenting Preferred Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper.
8. Suspension of Delivery, Transfer, etc. The deposit of Preferred Stock, the delivery of this Receipt against Preferred Stock, the transfer, split-up, combination, surrender or exchange of this Receipt or the exercise of any conversion right referred to in Section 2.11 of the Deposit Agreement may be suspended (i) during any period when the register of stockholders of the Company is closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of the Deposit Agreement.
9. Payment of Taxes or Other Governmental Charges. If any tax or other governmental charge shall become payable by or on behalf of the Depositary with respect to this Receipt, the Depositary Shares evidenced by this Receipt, the Preferred Stock (or any fractional interest therein) represented by such Depositary Shares, the exercise of any conversion right referred to in Section 2.11 of the Deposit Agreement or any transaction referred to in Section 4.6 of the Deposit Agreement, such tax (including transfer, issuance or acquisition taxes, if any) or governmental charge shall be payable by the holder hereof provided that the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of Common Stock upon conversion; and provided further that the holder of such Receipt shall pay the amount of any tax which is due if the shares are to be issued in a name other than the name of such holder. Until such payment is made, transfer of this Receipt or any withdrawal of the Preferred Stock or money or other property, if any, represented by the Depositary Shares evidenced by this Receipt may be refused, any dividend or other distribution may be withheld, such conversion right may be refused and any part or all of the Preferred Stock or other property represented by the Depositary Shares evidenced by this Receipt may be sold for the account of the holder hereof. Any dividend or other distribution or the proceeds of any such sale may be applied to any payment of such tax or other governmental charge, the holder of this Receipt remaining liable for any deficiency.
10. Amendment. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment (other than any change in
the fees of any Depositary, registrar or transfer agent) which (i) shall
materially and adversely alter the rights of the holders of Receipts , (ii)
would be materially and adversely inconsistent with the rights granted to the
holders of the Preferred Stock pursuant to the Certificate of Designation or
(iii) adds to or increases the fees and charges payable by the holders of
Receipts as provided for herein or in the Deposit Agreement shall be effective
unless such amendment shall have been approved by the holders of at least a
majority of the Depositary Shares then outstanding. The holder of this Receipt
at the time any such amendment becomes effective shall be deemed to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right, subject to the
provisions of paragraphs 7 and 8 hereof and of Sections 2.3, 2.7, 2.8 and 2.11
and Article III of the Deposit Agreement, of the owner of the Depositary Shares
evidenced by this Receipt to surrender this Receipt with instructions to the
Depositary to deliver to the holder the Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
11. Fees, Charges and Expenses of Depositary. The Company will pay all fees, charges and expenses of the Depositary, except for taxes (including transfer taxes, if any) and other governmental charges, and such charges as are expressly provided in the Deposit Agreement to be at the expense of persons depositing Preferred Stock, holders of Receipts or other persons.
12. Title to Receipts. It is a condition of this Receipt, and every successive holder hereof by accepting or holding the same consents and agrees, that title to this Receipt (and to the Depositary Shares evidenced hereby), when properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, is transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until this Receipt shall be transferred on the books of the Depositary as provided in Section 2.5 of the Deposit Agreement, the Depositary may, notwithstanding any notice to the contrary, treat the record holder hereof at such time as the absolute owner hereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary receives any cash dividend or other cash distribution on the Preferred Stock, including any cash received upon redemption of any shares of the Preferred Stock, the Depositary will, subject to the provisions of the Deposit Agreement, make such distribution to the holders of Receipts as nearly as practicable in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders; provided, however, that the amount distributed will be reduced by any amounts required to be withheld by the Company or the Depositary on account of taxes, or otherwise required by law, regulation or court order. Other distributions received on the Preferred Stock may be distributed (subject to such withholding as may be required on account of taxes or otherwise required by law, regulation or court order) to such holders of Receipts as provided in the Deposit Agreement.
14. Subscription Rights, Preferences or Privileges. If the Company shall at any time offer to persons in whose name Preferred Stock is registered on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or of any other nature, such rights, preferences or privileges shall in each such instance, subject to the provisions of the Deposit Agreement, be made available by the Depositary to the record holders of Receipts if the Company so directs in such manner as the Company shall instruct.
15. Fixing of Record Date. Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the Preferred Stock, or whenever the Depositary shall receive notice of (i) any meeting at which holders of Preferred Stock are entitled to vote or of which holders of Preferred Stock are entitled to notice or (ii) any election on the part of the Company to redeem any shares of Preferred Stock, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Stock) for the determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or whose Depositary Shares are to be so redeemed.
16. Voting Rights. Upon receipt of notice of any meeting at which the
holders of Preferred Stock are entitled to vote, the Depositary shall, as soon
as practicable, mail to the holders of Receipts a notice, which shall contain
(i) such information as is contained in such notice of meeting, (ii) a statement
that the holders of Receipts at the close of business on a specified record date
determined as provided in Paragraph 14 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the Certificate
of Designation, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred Stock represented by the Depositary
Shares evidenced by their respective Receipts, and (iii) a brief statement as to
the manner in which such instructions may be given. Upon the written request of
a holder of a Receipt on such record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt.
17. Excess Shares. Without limiting any of the other terms and provisions of the Deposit Agreement, this Receipt shall be subject to Article XII of the Company's Certificate of Incorporation.
18. Reports, Inspection of Transfer Books. The Depositary shall make available for inspection by holders of Receipts at the Corporate Office and at such other places as it may from time to time deem advisable any reports and communications received from the Company that are both received by the Depositary as the holder of Preferred Stock and made generally available to the holders of Preferred Stock by the Company.
The Depositary shall keep books at the Corporate Office for the registration and transfer of Receipts. Within a reasonable time after a request by a holder of Receipts, the Depositary shall make available for inspection at the Corporate Office such books for inspection by the record holders of Receipts as provided by applicable law.
19. Liability of the Depositary, the Depositary's Agents and the Company. Neither the Depositary nor any Depositary's Agent nor the Company shall incur any liability to any holder of any Receipt, if by reason of any provision of any present or future law or regulation of any governmental authority or, in the case of the Depositary or the Depositary's Agent, by reason of any provision, present or future, of the Certificate of Incorporation or the Certificate of Designation or, in the case of the Company, the Depositary or the Depositary's Agent, by reason of any act of God or war or other circumstances beyond the control of the relevant party, the Depositary, any Depositary's Agent or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of the Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent or the Company incur any liability to any holder of a Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of the Deposit Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise any discretion provided for in the Deposit Agreement.
20. Obligations of the Depositary, the Depositary's Agents and the Company. Neither the Depositary nor any Depositary's Agent nor the Company assumes any obligation or shall be subject to any liability hereunder or under the Deposit Agreement to holders of Receipts other than that each of them agrees to act in good faith and without gross negligence and willful misconduct in the performance of such duties as are specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to Preferred Stock, Depositary Shares or Receipts that in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company will be liable for any action or failure to act by it in reliance on documents believed by it to be genuine or upon the advice of or information from legal counsel, accountants, any person presenting Preferred Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such advice or information.
21. Termination of Deposit Agreement. Whenever (i) so directed by the Company and approved by the holders of at least a majority of the Depositary Shares then outstanding or (ii) advised in writing by the Company that the termination of the Deposit Agreement is necessary to preserve the Company's status as a " real estate investment trust, " as such term is defined in the Internal Revenue Code of 1986, as amended, the Depositary will terminate the Deposit Agreement by mailing notice of such termination to the record holders of all Receipts then outstanding at least 60 days prior to the date fixed in such notice for such termination. The Depositary may likewise terminate the Deposit Agreement if at any time 60
days shall have expired after the Depositary shall have delivered to the Company a notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment. Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations thereunder except for its obligations to the Depositary, any Depositary's Agent and any Registrar with respect to indemnification, charges and expenses.
If any Receipts remain outstanding after the date of termination, the Depositary thereafter shall discontinue all functions and be discharged from all obligations as provided in the Deposit Agreement, except as specifically provided therein.
22. Governing Law. The Deposit Agreement and this Receipt and all rights thereunder and hereunder and provisions thereof and hereof shall be governed by, and construed in accordance with, the law of the State of New York.
This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose unless this Receipt shall have been executed manually or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by facsimile by the Depositary by the signature of a duly authorized signatory and if executed by facsimile signature of the Depositary, shall have been countersigned manually by such Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED PREFERRED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE DEPOSITARY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY PREFERRED STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE RECEIPTS, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of a Receipt without charge, upon request addressed to its executive office or the office of its transfer agent, a full statement of the designation, relative rights, preferences and limitations of the shares of each authorized class, and of each series of preferred shares authorized to be issued, so far as the same may have been fixed, and a statement of the authority of the Board of Directors of the Company to designate and fix the relative rights, preferences and limitations of other series.
Dated:
[NAME OF BANK]
By:______________________________
Authorized Signature
Exhibit 5.1
[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
July 3, 2002
Ladies and Gentlemen:
We have acted as counsel to Ventas, Inc., a Delaware corporation ("Ventas"), Ventas Realty, Limited Partnership, a Delaware limited partnership ("Ventas LP"), Ventas Capital Corporation, a Delaware corporation ("Ventas Capital"), and Ventas LP Realty, L.L.C., a Delaware limited liability company ("Ventas LLC," and, together with Ventas, Ventas LP and Ventas Capital, the "Registrants"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of $750,000,000 aggregate principal amount of senior and subordinated debt securities of Ventas (the "Ventas Debt Securities"), senior and subordinated debt securities of Ventas Realty and Ventas Capital (the "Subsidiary Debt Securities," and, together with the Ventas Debt Securities, the "Debt Securities"), the guarantees of the Subsidiary Debt Securities by Ventas (the "Ventas Guarantees"), the guarantees of the Subsidiary Debt Securities by Ventas LLC (the "Ventas LLC Guarantees"), preferred stock of Ventas (the "Preferred Stock"), depositary shares representing preferred stock of Ventas (the "Depositary Shares"), common stock of Ventas (the "Common Stock") and warrants of Ventas ("Warrants") entitling the holder to purchase from or sell to Ventas certain Securities (as defined below). The Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants are herein referred to collectively as the "Securities." The Securities may be issued from time to time by the Registrants after the registration statement to which this opinion is an exhibit (the "Registration Statement") becomes effective. The terms used herein, unless otherwise defined, have the meanings assigned to them in the Registration Statement.
We have examined such documents as we have considered necessary for purposes of this opinion, including (i) the form of senior indenture (the "Senior Indenture"), between the applicable issuer(s) of the senior debt securities issuable thereunder and a trustee, (ii) the form of subordinated indenture (the "Subordinated
Ventas, Inc.
Vental Realty, Limited Partnership
Ventas Capital Corporation
Ventas LP Realty, L.L.C.
July 3, 2002
Indenture"), between the applicable issuer(s) of the subordinated debt securities issuable thereunder and a trustee, (iii) the form of deposit agreement between Ventas and a depositary ("Depositary") relating to the Depositary Shares, (iv) the Certificate of Incorporation, as amended, and the Third Amended and Restated By-Laws of Ventas, (v) the Certificate of Limited Partnership, as amended, and the First Amended and Restated Agreement of Limited Partnership of Ventas LP, (vi) the Certificate of Incorporation and By-Laws of Ventas Capital (vi) the Certificate of Formation and Limited Liability Company Agreement, as amended, of Ventas LLC and such other documents and matters of law as we have deemed necessary in connection with the opinions hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic originals of all documents submitted to us as certified copies or photocopies. In rendering the opinions expressed below, we have relied on factual representations by officials of the Registrants and statements of fact contained in the documents we have examined.
A. Based on the foregoing, and subject to the qualifications and assumptions set forth below, we are of the opinion that:
1. Upon the taking of appropriate corporate action by Ventas; the effectiveness of the Registration Statement under the Act; the qualification of the Senior Indenture or the Subordinated Indenture, as the case may be, under the Trust Indenture Act of 1939; the compliance with the "blue sky" laws of certain states; the due execution and delivery by Ventas, as issuer thereunder, and the other parties thereto of such Senior Indenture (the "Ventas Senior Indenture"), such Subordinated Indenture (the "Ventas Subordinated Indenture"), and each amendment of or supplement to the Ventas Senior Indenture or Ventas Subordinated Indenture, as the case may be (each such Indenture, as so amended or supplemented, being referred to as a "Ventas Indenture," and the trustee under any Ventas Indenture being referred to as a "Ventas Trustee"), assuming that the relevant Ventas Indenture is consistent with the form thereof filed as an exhibit to the Registration Statement, the Ventas Debt Securities will be duly and validly authorized and, when the Ventas Debt Securities are duly executed by Ventas, authenticated by the relevant Ventas Trustee and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the relevant Ventas Indenture and the applicable definitive purchase, underwriting or similar agreement, the Ventas Debt Securities will be valid and binding obligations of Ventas, entitled to the benefits of the relevant Ventas Indenture.
2. Upon the taking of appropriate partnership action by Ventas LP; the taking of appropriate corporate action by Ventas Capital; the effectiveness of the Registration Statement under the Act; the qualification of such Senior Indenture or such Subordinated Indenture, as the case may be, under the Trust Indenture Act of 1939; the
Ventas, Inc.
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Ventas LP Realty, L.L.C.
July 3, 2002
compliance with the "blue sky" laws of certain states; the due execution and delivery by Ventas LP and Ventas Capital, as issuers thereunder, and the other parties thereto of such Senior Indenture (the "Subsidiary Senior Indenture"), such Subordinated Indenture (the "Subsidiary Subordinated Indenture"), and each amendment of or supplement to the Subsidiary Senior Indenture or Subsidiary Subordinated Indenture, as the case may be (each such Indenture, as so amended or supplemented, being referred to as a "Subsidiary Indenture," and the trustee under any Subsidiary Indenture being referred to as a "Subsidiary Trustee"), assuming that the relevant Subsidiary Indenture is consistent with the form thereof filed as an exhibit to the Registration Statement, the Subsidiary Debt Securities will be duly and validly authorized and, when the Subsidiary Debt Securities are duly executed by Ventas LP and Ventas Capital, authenticated by the relevant Subsidiary Trustee and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the relevant Subsidiary Indenture and the applicable definitive purchase, underwriting or similar agreement, the Subsidiary Debt Securities will be valid and binding obligations of Ventas LP and Ventas Capital, entitled to the benefits of the relevant Subsidiary Indenture.
3. Upon the taking of appropriate corporate action by Ventas and Ventas Capital; the taking of appropriate partnership action by Ventas LP; the effectiveness of the Registration Statement under the Act; the qualification of such Subsidiary Indenture under the Trust Indenture Act of 1939; the compliance with the "blue sky" laws of certain states; the due execution and delivery by Ventas LP and Ventas Capital, as issuers thereunder, Ventas, as guarantor thereunder, and the other parties thereto of such Subsidiary Indenture, and each amendment of or supplement to such Subsidiary Indenture, assuming that the relevant Subsidiary Indenture is consistent with the form thereof filed as an exhibit to the Registration Statement; the Ventas Guarantees will be duly and validly authorized and, when the Subsidiary Debt Securities are duly executed by Ventas LP and Ventas Capital, endorsed by Ventas, authenticated by the relevant Subsidiary Trustee and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the relevant Subsidiary Indenture and the applicable definitive purchase, underwriting or similar agreement, the Ventas Guarantees will be valid and binding obligations of Ventas, entitled to the benefits of the relevant Subsidiary Indenture.
4. Upon the taking of appropriate corporate action by Ventas Capital; the taking of appropriate partnership action by Ventas LP; the taking of appropriate company action by Ventas LLC; the effectiveness of the Registration Statement under the Act; the qualification of such Subsidiary Indenture under the Trust Indenture Act of 1939; the compliance with the "blue sky" laws of certain states; the due execution and delivery by Ventas LP and Ventas Capital, as issuers thereunder, Ventas LLC, as
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guarantor thereunder, and the other parties thereto of such Subsidiary Indenture, and each amendment of or supplement to such Subsidiary Indenture, assuming that the relevant Subsidiary Indenture is consistent with the form thereof filed as an exhibit to the Registration Statement; the Ventas LLC Guarantees will be duly and validly authorized and, when the Subsidiary Debt Securities are duly executed by Ventas LP and Ventas Capital, endorsed by Ventas LLC, authenticated by the relevant Subsidiary Trustee and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the relevant Subsidiary Indenture and the applicable definitive purchase, underwriting or similar agreement, the Ventas LLC Guarantees will be valid and binding obligations of Ventas LLC, entitled to the benefits of the relevant Subsidiary Indenture.
5. Upon the taking of appropriate corporate action by Ventas and its stockholders, including the approval of the terms of any class or series of Preferred Stock and the authorization of the execution and filing of a Certificate of Designation (a "Certificate") relating thereto with the Delaware Secretary of State, and the filing of the Certificate; the effectiveness of the Registration Statement under the Act; the compliance with the "blue sky" laws of certain states; the Preferred Stock will be duly and validly authorized, and, when certificates representing the shares of Preferred Stock are duly executed by Ventas, countersigned, registered and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement and the supplement or supplements to the Prospectus included therein and the applicable definitive purchase, underwriting or similar agreement, will be validly issued, fully paid and nonassessable.
6. Upon the taking of appropriate corporate action by Ventas and its stockholders; the effectiveness of the Registration Statement under the Act; the compliance with the "blue sky" laws of certain states; the Common Stock will be duly and validly authorized, and, when the certificates representing shares of Common Stock are duly executed by Ventas, countersigned, registered and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement and the supplement or supplements to the Prospectus included therein and the applicable definitive purchase, underwriting or similar agreement, the Common Stock will be validly issued, fully paid and nonassessable.
7. Upon the taking of appropriate corporate action by Ventas and its stockholders, including the authorization of the execution and filing of a Certificate relating to the underlying Preferred Stock with the Delaware Secretary of State; the effectiveness of the Registration Statement under the Act; the compliance with the "blue sky" laws of certain states; the due execution and delivery by the parties thereto of a deposit agreement relating to Depositary Shares, and each amendment thereof or supplement thereto (each such Deposit Agreement, as so amended or supplemented,
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being referred to as a "Deposit Agreement"), assuming that the relevant Deposit Agreement is consistent with the form thereof filed as an exhibit to the Registration Statement; the shares of Preferred Stock underlying such Depositary Shares have been deposited with a bank or trust company (which meets the requirements for the Depositary set forth in the Registration Statement or in the supplement or supplements to the Prospectus included therein) under the applicable Deposit Agreement, the Depositary Shares will be duly and validly authorized, and, when the depositary receipts evidencing rights in the Depositary Shares are duly executed by the relevant Depositary and registered, and the Depositary Shares are sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the Deposit Agreement and the applicable definitive purchase, underwriting or similar agreement, will be validly issued and will entitle the holders thereof to the rights specified in the Deposit Agreement and the depositary receipts evidencing rights therein.
8. Upon the taking of appropriate corporate action by Ventas and its stockholders; the effectiveness of the Registration Statement under the Act; the compliance with the "blue sky" laws of certain states; the due execution and delivery by the parties thereto of a Warrant Agreement relating to Warrants, and each amendment thereof or supplement thereto (each such Warrant Agreement, as so amended or supplemented, being referred to as a "Warrant Agreement"), assuming that the relevant Warrant Agreement is consistent with the description thereof contained in the Registration Statement and the legality and validity of the Securities (other than Warrants) underlying such Warrants, the Warrants will be duly and validly authorized, and, when the Warrants are duly executed by Ventas, authenticated by the warrant agent and sold and delivered at the price and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the Prospectus included therein and the Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement, will be valid and binding obligations of Ventas and will entitle the holders thereof to the rights specified in the Warrant Agreement.
B. The foregoing opinions are subject to the following assumptions, qualifications and exceptions:
1. We are members of the bar of the State of New York, and the opinions expressed herein are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States as in effect on the date of this opinion typically applicable to transactions of the type contemplated by this opinion and to the specific legal matters expressly addressed herein, and no opinion is expressed or implied with respect to the laws of any other jurisdiction or any legal matter not expressly addressed herein.
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2. The opinions set forth above are qualified in that the legality or enforceability of the documents referred to therein may be (a) subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, (b) limited insofar as the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any enforcement thereof may be brought, and (c) subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) including principles of commercial reasonableness or conscionability and an implied covenant of good faith and fair dealing Insofar as provisions of any of the documents referenced in this opinion letter provide for indemnification or contribution, the enforcement thereof may be limited by public policy considerations.
3. We express no opinion as to provisions of the documents referenced in this opinion letter insofar as such provisions relate to (i) the subject matter jurisdiction of a United States Federal court to adjudicate any controversy relating to such documents, (ii) the waiver of inconvenient forum with respect to proceedings in any such United States Federal court, (iii) the waiver of right to a jury trial, (iv) the validity or enforceability under certain circumstances of provisions of the documents with respect to severability or any right of setoff, or (v) limitations on the effectiveness of oral amendments, modifications, consents and waivers.
4. No person or entity other than you may rely or claim reliance upon this opinion letter.
5. This letter speaks only as of the date hereof and is limited to present statutes, regulations and administrative and judicial interpretations. We undertake no responsibility to update or supplement this letter after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Validity of the Securities Offered" in the Prospectus. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher |
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3 No. 333-90756) and related Prospectus of Ventas, Inc., Ventas Realty, Limited Partnership, Ventas Capital Corporation and Ventas LP Realty, L.L.C. for the registration of up to an aggregate of $750,000,000 of debt securities, guarantees of debt securities, preferred stock, depositary shares, common stock and warrants and to the incorporation by reference therein of our reports, (a) dated February 8, 2002, with respect to the consolidated financial statements of Ventas, Inc. included in its Current Report on Form 8-K dated June 19, 2002, and (b) dated March 21, 2002 with respect to the December 31, 2001 financial statement schedule of Ventas, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2001, both filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
July 2, 2002
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