Exhibit 10.2
EXECUTION COPY
VENTAS, INC.
700,000 Shares of Senior Preferred
Stock
PURCHASE AGREEMENT
Dated April 26, 2007
PURCHASE AGREEMENT
This Purchase Agreement is entered
into and dated as of April 26, 2007 (this “
Agreement ”), by and among Ventas, Inc., a Delaware
corporation (“ Ventas ” or the “
Issuer ”), Ventas Realty, Limited Partnership, a
Delaware limited partnership (the “ Operating
Partnership ”), and the purchasers listed on Schedule I
hereto (collectively, the “ Purchasers ”). Each
of Ventas and the Operating Partnership is referred to herein
sometimes individually as a “ Ventas Entity ”
and together as the “ Ventas Entities
.”
WHEREAS, subject to the terms and
conditions set forth in this Agreement, the Issuer proposes to
issue and sell to the Purchasers, acting severally and not jointly,
700,000 shares of its Senior Preferred Stock, liquidation
preference of $1,000 per share (the “ Securities
”), the terms of which are set forth in the form of
Certificate of Designations attached hereto as
Exhibit B (the “ Certificate of
Designations ”); and
WHEREAS, on or prior to the Closing
Time (as defined below), the Purchasers will enter into and be
entitled to the benefits of a Registration Rights Agreement by and
among the Purchasers and Ventas attached hereto as Exhibit C
(the “ Registration Rights Agreement ”);
and
WHEREAS, the Ventas Entities have
advised the Purchasers that Ventas intends to, directly or
indirectly, acquire all of the assets and assume substantially all
of the liabilities of Sunrise Senior Living Real Estate Trust (the
“ Acquisition ”) pursuant to that certain
purchase agreement, dated as of January 14, 2007, by and among
Ventas, Ventas SSL Ontario I, Inc. (formerly 2124678 Ontario Inc.),
Ventas SSL Ontario II, Inc. (formerly 2124680 Ontario Inc.),
Sunrise Senior Living Real Estate Investment Trust (the “
Target ”), Sunrise REIT Trust and Sunrise REIT GP,
Inc., in its capacity as general partner of Sunrise Canadian
UPREIT, LP (as amended on April 10, 2007, the “
Acquisition Agreement ”), in part, with the proceeds
received upon the sale of the Securities;
NOW THEREFORE, in consideration of
the mutual covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Ventas Entities and the Purchasers
agree as follows:
SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Ventas Entities . The Ventas Entities,
jointly and severally, represent and warrant to each Purchaser as
of the date hereof and agree with each Purchaser as follows (in
each case prior to giving effect to the Acquisition or the
Acquisition Agreement or any of the Transactions contemplated
thereby):
(i) SEC Reports . Since
January 1, 2004, Ventas has filed with the U.S. Securities and
Exchange Commission (the “ Commission ”) all
forms, reports, schedules, proxy statements (collectively, and in
each case including all exhibits and schedules thereto and
documents incorporated by reference therein and including all
registration statements and prospectuses filed with the Commission,
the “ SEC Reports ”) required to be filed by
Ventas with the Commission. As of its date of filing, each SEC
Report
complied in all material respects
with the requirements of the Securities Exchange Act of 1934, as
amended (the “ 1934 Act ”), and the rules and
regulations promulgated thereunder (the “ 1934 Act
Regulations ”), or the Securities Act of 1933, as amended
(the “ 1933 Act ”), and the rules and
regulations promulgated thereunder (the “ 1933 Act
Regulations ”), and none of such SEC Reports (including
any and all financial statements included therein) contained when
filed (except to the extent revised or superseded by a subsequent
filing with the Commission that is publicly available prior to the
date hereof) any untrue statement of a material fact or (except to
the extent revised or superseded by a subsequent filing with the
Commission that is publicly available prior to the date hereof)
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements made therein, in light
of the circumstances under which they were made, not
misleading.
(ii) Capitalization . Ventas
has an authorized capitalization of 180,000,000 shares of common
stock, $0.25 par value (the “ Common Stock ”),
and 10,000,000 shares of preferred stock, $1.00 par value. All of
the issued and outstanding shares of capital stock or other equity
interests of Ventas have been duly authorized and validly issued,
are fully paid and nonassessable and were not issued in violation
of any preemptive or similar right. Attached as Schedule B
is a true and complete list identifying each subsidiary (as defined
in the 1933 Act) of Ventas, its jurisdiction of incorporation or
formation and its direct or indirect percentage equity ownership by
Ventas (all such entities, the “ Subsidiaries
”). All of the issued and outstanding shares of capital stock
or other equity interests of each such Subsidiary have been duly
and validly authorized and issued, are fully paid and (except in
the case of general partnership interests) nonassessable, were not
issued in violation of any preemptive or similar right and, except
as set forth in the SEC Reports or on Schedule B, are owned by
Ventas, directly or indirectly through one or more Subsidiaries,
free and clear of all Liens other than Liens (i) that will be
discharged at or prior to the Closing Time or (ii) that are
described in the SEC Reports and secure indebtedness described in
the SEC Reports. Except as set forth on Schedule B , there
are no outstanding options, warrants or other rights to acquire or
purchase, or instruments convertible into or exchangeable for, any
shares of capital stock of any of the Significant Subsidiaries. For
purposes of this Agreement, “ Significant Subsidiary
” means any Subsidiary whose total assets or annualized
revenues (when aggregated with those of its Subsidiaries) as of the
date of this Agreement exceed 10% of the consolidated total assets
or consolidated annualized revenues of Ventas and the Subsidiaries
as of the date of this Agreement. “ Lien ”
means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
(iii) Authorization . The
Securities to be purchased by the Purchasers from the Issuer have
been duly authorized by the Issuer for issuance and sale pursuant
to this Agreement, and at the Closing Time, when issued and
delivered by the Issuer against payment by the Purchasers in
accordance with the terms of this Agreement, will have
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been validly issued, fully paid and
nonassessable; and the stockholders of the Issuer will have no
preemptive or similar rights with respect to the
Securities.
(iv) Good Standing of Ventas and
Its Subsidiaries; Power and Authority . Each of Ventas and its
(a) Significant Subsidiaries is a corporation, partnership,
limited liability company or real estate investment trust duly
organized and validly existing under the laws of the jurisdiction
of its organization, (b) Subsidiaries has all requisite
corporate, partnership, limited liability company or trust power
and authority, and has all governmental licenses, authorizations,
consents and approvals, necessary to own its property and carry on
its business as now being conducted, except where the failure to
obtain any such license, authorization, consent and approval is not
reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect (as defined below), and
(c) Subsidiaries is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary except where
failure to be so qualified and in good standing is not reasonably
likely, individually or in the aggregate, to have a Material
Adverse Effect (as defined below). Each of the Ventas Entities has
all requisite corporate, partnership, limited liability company or
trust power and authority to execute, deliver and perform all of
its obligations under this Agreement and to consummate the
transactions contemplated thereby to be consummated on its part,
including, without limitation, in the case of Ventas, the authority
to issue, sell and deliver the Securities. A “ Material
Adverse Effect ” means any material adverse effect on the
business, condition (financial or other), results of operations,
performance or properties of Ventas and the Subsidiaries, taken as
a whole.
(v) Authorization of this
Agreement . This Agreement has been duly and validly
authorized, executed and delivered by each of the Ventas
Entities.
(vi) Authorization of the
Certificate of Designations . The Certificate of Designations
has been duly and validly authorized, and, at the Closing Time,
will have been duly executed and filed with the Secretary of State
of the State of Delaware by the Issuer and will constitute a
legally binding and valid obligation of Ventas, enforceable against
Ventas in accordance with its terms.
(vii) Authorization of the
Registration Rights Agreement . The Registration Rights
Agreement has been duly authorized by Ventas and, at the Closing
Time, will have been duly executed and delivered by Ventas, and
will constitute a legally binding and valid obligation of Ventas
(assuming, if applicable, the due authorization, execution and
delivery thereof by the Purchasers), enforceable against Ventas in
accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited
by federal or state securities laws or principles of public
policy.
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(viii) Absence of Defaults and
Conflicts . Neither Ventas nor any Subsidiary is in violation
of its charter, bylaws or other constitutive documents. Except as
described in the SEC Reports, none of Ventas or any Subsidiary is
(A) in default (or, with notice or lapse of time or both,
would be in default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, loan or credit
agreement, lease, license, franchise agreement, authorization,
permit, certificate or other agreement or instrument to which any
of them is a party or by which any of them is bound or to which any
of their assets or properties is subject (collectively, “
Agreements and Instruments ”) or (B) in violation
of any law, statute, rule, regulation, judgment, order or decree of
any domestic or foreign court with jurisdiction over any of them or
any of their assets or properties or other governmental or
regulatory authority, agency or other body, which, in the case of
clauses (A) and (B), individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect. There exists
no condition that, with notice, the passage of time or otherwise,
would constitute a default by Ventas or any Subsidiary under any
such document or instrument or result in the imposition of any
penalty or the acceleration of any indebtedness, other than
penalties, defaults or conditions that, individually or in the
aggregate, are not reasonably likely to have a Material Adverse
Effect.
(ix) Absence of Defaults and
Conflicts upon Consummation of Offering . None of the issuance,
offer and sale of the Securities by the Issuer, the execution,
delivery and performance of this Agreement, the Acquisition
Agreement, the Registration Rights Agreement, the Certificate of
Designations, or the Securities (collectively, the “
Transaction Documents ”) by Ventas or the Operating
Partnership, as applicable, or the consummation by the Ventas
Entities of the transactions contemplated by the Transaction
Documents violates or will violate, conflicts with or constitutes a
breach of any of the terms or provisions of or a default under (or
an event that with notice or the lapse of time, or both, would
constitute a default), or results in the creation or imposition of
a lien, charge, or encumbrance on any property or assets of Ventas
or any Subsidiary pursuant to, (i) the charter, bylaws or
other constitutive documents of Ventas or any Subsidiary,
(ii) any law, statute, rule or regulation applicable to Ventas
or any Subsidiary or their respective assets or properties,
(iii) any judgment, order or decree of any domestic or foreign
court or governmental agency or authority having jurisdiction over
Ventas or any Subsidiary or their respective assets or properties
or (iv) any Agreements and Instruments, except in the case of
clauses (ii) and (iv), for such violations, conflicts,
breaches, defaults, consents, liens, charges or encumbrances that,
individually or in the aggregate, are not reasonably likely to have
a Material Adverse Effect. Assuming the accuracy of the
representations and warranties of the Purchasers in
Section 1(c) of this Agreement and the compliance by the
Purchasers with their covenants in such section, no consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or
governmental agency, body or administrative agency, domestic or
foreign, is required to be obtained or made by the Issuer or any
Subsidiary for the execution, delivery and performance by the
Ventas Entities of the Transaction Documents, including the
consummation of any of the transactions contemplated thereby,
except such as have been or will be obtained or made at or prior to
the Closing Time, including, without limitation, such as may be
required by the 1933 Act, state securities
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laws, blue sky laws and registration
of the resale of the Securities under the Registration Rights
Agreement.
(x) Absence of Proceedings .
Except as set forth in the SEC Reports, there is no action, suit or
proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending or, to
the knowledge of any of the Ventas Entities, threatened or
contemplated, to which any of Ventas or any Subsidiary is or may be
a party or to which the business, assets or property of such person
is or may be subject that is, individually or in the aggregate,
reasonably likely (i) to have a Material Adverse Effect, or
(ii) to interfere with or adversely affect the issuance of the
Securities in any jurisdiction or adversely affect the consummation
of the transactions contemplated by the Transaction Documents.
Except as set forth in the SEC Reports, there is (A) no
statute, rule, regulation or order that has been enacted, adopted
or issued or, to the knowledge of any of the Ventas Entities, that
has been proposed by any governmental body or agency, domestic or
foreign, and (B) no injunction, restraining order or order of
any nature by a federal or state court or foreign court of
competent jurisdiction to which Ventas or any Subsidiary is or may
be subject that in the case of clauses (A) and (B) is,
individually or in the aggregate, (x) reasonably likely to
have a Material Adverse Effect, or (y) reasonably likely to
interfere with or adversely affect the issuance of the Securities
in any jurisdiction or adversely affect the consummation of the
transactions contemplated by the Transaction Documents. Every
request of any securities authority or agency of any jurisdiction
for additional information with respect to the Securities that has
been received by Ventas or any Subsidiary or their counsel prior to
the date hereof has been, or will prior to the Closing Time be,
complied with in all material respects.
(xi) Absence of Labor Dispute
. Except as is not reasonably likely to have a Material Adverse
Effect, no labor disturbance by the employees of Ventas or any
Subsidiary exists or, to the knowledge of any of the Ventas
Entities, is imminent. None of the Ventas Entities is aware of any
existing or imminent labor disturbance by the employees of Kindred
Healthcare, Inc. which may reasonably be expected to result in a
Material Adverse Effect.
(xii) Environmental Laws .
Except as described in the SEC Reports, Ventas and each Subsidiary
(A) is in compliance with, or not subject to costs or
liabilities under, laws, regulations, rules of common law, orders
and decrees, as in effect as of the date hereof, and any present
judgments and injunctions issued or promulgated thereunder relating
to pollution or protection of public and employee health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants applicable to it or its business or
operations or ownership or use of its property (“
Environmental Laws ”), other than noncompliance or
such costs or liabilities that, individually or in the aggregate,
are not reasonably likely to have a Material Adverse Effect, and
(B) possesses all permits, licenses or other approvals
required under applicable Environmental Laws, except where the
failure to possess any such permit, license or other approval is
not, either individually or in the aggregate, reasonably likely to
have a Material Adverse Effect. All currently pending and, to the
knowledge of any of the Ventas Entities, threatened proceedings,
notices of violation, demands, notices of potential responsibility
or liability, suits and existing environmental conditions by
any
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governmental authority to which any
of the Ventas Entities is subject that are reasonably likely to
result in a Material Adverse Effect are fully and accurately
described in all material respects in the SEC Reports.
(xiii) Possession of Licenses and
Permits . Ventas and each Subsidiary has (A) all licenses,
certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with,
all applicable authorities, all self-regulatory authorities and all
courts and other tribunals (each, an “ Authorization
”) necessary to engage in the business conducted by it in the
manner described in the SEC Reports, except where the failure to
hold such Authorizations is not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect, and
(B) no knowledge that any governmental body or agency,
domestic or foreign, is considering limiting, suspending or
revoking any such Authorization, except where any such limitations,
suspensions or revocations are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect. All
such Authorizations are valid and in full force and effect, and
Ventas and each Subsidiary is in compliance with the terms and
conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities having jurisdiction with
respect to such Authorizations, except for any invalidity, failure
to be in full force and effect or noncompliance with any
Authorization that is not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect.
(xiv) Title to Property .
Ventas and each Subsidiary has good and marketable title in fee
simple or a ground leasehold interest in all items of real property
and good and marketable title to all personal property owned by
each of them, in each case free and clear of all Liens, except
(i) for Liens described in the SEC Reports and (ii) to
the extent that the failure to have such title or the presence of
such Liens is not, individually or in the aggregate, reasonably
likely to result in a Material Adverse Effect. Any real property
and buildings held under lease by Ventas or any Subsidiary are held
under valid, subsisting and enforceable leases, except to the
extent that the failure to so hold such real property and buildings
is not, individually or in the aggregate, reasonably likely to
result in a Material Adverse Effect.
(xv) Authorization, etc., of
Leases . Each of Ventas’ and the Subsidiaries’
leases, including the Master Leases (as defined below), has been
duly authorized by one or more of Ventas and its Subsidiaries, as
applicable, and is a valid and binding agreement of Ventas and/or
any such Subsidiary, and, to the knowledge of Ventas and/or any
such Subsidiary, each other party thereto, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought and except, with respect to Ventas’
and the Subsidiaries’ leases (other than the Master Leases),
as would not individually or in the aggregate, be reasonably likely
to have a Material Adverse Effect. To the knowledge of any of the
Ventas Entities, no lessee or sublessee of any portion of any of
the properties owned or leased by Ventas and/or any Subsidiary is
in default under its respective lease and there is no event which,
but for the passage of time or the giving of notice or both, would
constitute a default under any such lease, except as described
in
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the SEC Reports and except for such
defaults that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect. The term “
Master Leases ” refers to the four amended and
restated master lease agreements, dated as of April 20, 2001,
by and among the Operating Partnership and Kindred Healthcare Inc.
and Kindred Healthcare Operating, Inc. in each case, as heretofore
amended.
(xvi) Qualification as a REIT
. Ventas meets the requirements for qualification and taxation as a
real estate investment trust (“ REIT ”) under
the Internal Revenue Code of 1986 (the “ Code
”). ElderTrust is a “ qualified REIT subsidiary
” within the meaning of Section 856(i)(2) of the
Code.
(xvii) Possession of Intellectual
Property . Each of Ventas and each Significant Subsidiary owns,
possesses or has the right to employ all patents, patent rights,
licenses, inventions, copyrights, know-how, trademarks, service
marks, trade names and other intellectual property (collectively,
the “ Intellectual Property ”) necessary to
conduct the businesses operated by it as described in the SEC
Reports, except where the failure to own, possess or have the right
to employ such Intellectual Property is not reasonably likely to
have a Material Adverse Effect. None of Ventas or any Subsidiary
has received any notice of infringement of or conflict with (and
neither knows of any such infringement or a conflict with) asserted
rights of others with respect to any of the foregoing that, if such
assertion of infringement or conflict were sustained, is reasonably
likely to have a Material Adverse Effect. To the knowledge of each
of the Ventas Entities, the use of the Intellectual Property in
connection with the business and operations of Ventas and the
Subsidiaries does not infringe on the rights of any person, except
for such infringement as is not reasonably likely to have a
Material Adverse Effect, and neither Ventas nor any Subsidiary has
received any notice of, and otherwise has no knowledge of, any
threatened or existing action, suit, proceeding or claim by any
person challenging use of the Intellectual Property by Ventas and
the Subsidiaries.
(xviii) Tax Returns and Payment
of Taxes. (A) All tax returns required to be filed by
Ventas and each Subsidiary have been timely filed in all
jurisdictions where such returns are required to be filed;
(B) Ventas and each Subsidiary have paid all taxes, including,
but not limited to, income, value added, property and franchise
taxes, penalties and interest, assessments, fees and other charges
due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good
faith and for which reserves have been provided in accordance with
generally accepted accounting principles (“ GAAP
”) or those currently payable without penalty or interest;
and (C) Ventas and each Subsidiary has complied with all
withholding tax obligations, except, in the case of any of clause
(A), (B) or (C), where the failure to make such required
filings, payments or withholdings is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect.
Except as described in the SEC Reports, none of Ventas or any
Subsidiary has knowledge of any material proposed additional tax
assessments against Ventas or any of the Subsidiaries or their
assets or property.
(xix) Certain ERISA Matters .
None of Ventas or any of the Subsidiaries has any liability for any
prohibited transaction or accumulated funding deficiency (within
the
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meaning of Section 412 of the
Code) or any complete or partial withdrawal liability with respect
to any pension, profit sharing or other plan which is subject to
the Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), to which Ventas or any Subsidiary
makes or ever has made a contribution and in which any employee of
Ventas or any Subsidiary is or has ever been a participant. With
respect to such plans, Ventas and each Subsidiary is in compliance
in all material respects with all applicable provisions of
ERISA.
(xx) Investment Company Act .
None of the Ventas Entities is, or upon the issuance and sale of
the Securities as herein contemplated and any application of the
net proceeds therefrom will be, an “ investment
company ” or a company “ controlled ”
by an “investment company” as such terms are defined in
the Investment Company Act of 1940, as amended (the “ 1940
Act ”).
(xxi) Insurance for Leased
Properties . Each of Ventas and each Subsidiary maintains or
causes to be maintained by the lessee under the leases for its
properties insurance covering its properties (including title to
its properties), assets, operations, personnel and businesses, and
such insurance is of such type and in such amounts in accordance
with customary industry practice and in Ventas’ reasonable
judgment sufficient to protect Ventas and the Subsidiaries and
their businesses.
(xxii) Accounting and Other
Controls . Ventas maintains effective internal control over
financial reporting as defined in the 1934 Act. Each of Ventas and
each Subsidiary maintains a system of internal accounting controls
sufficient to provide reasonable assurance that:
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with GAAP and
to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxiii) No Material Weakness in
Internal Controls . Except as disclosed in the SEC Reports,
since the end of Ventas’ most recent audited fiscal year,
there has been (i) no material weakness in Ventas’
internal control over financial reporting (whether or not
remediated) and (ii) no change in Ventas’ internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, Ventas’ internal
control over financial reporting.
(xxiv) No Material Adverse Change
in Business . As of December 31, 2006, neither Ventas nor
any Subsidiary had any material liabilities or obligations, direct
or contingent, that were not set forth in Ventas’ audited
consolidated balance sheet as of December 31, 2006, or in the
notes thereto, set forth in the annual report of Ventas on Form
10-K for the fiscal year ended December 31, 2006 (the “
2006 10-K ”), or otherwise described therein, other
than the performance by Ventas and each Subsidiary of their
respective obligations under ordinary course executory contracts
that are not in default, that would not reasonably be expected to
have a Material Adverse Effect and that are not
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required by GAAP, as modified by the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, to be disclosed on a regularly prepared balance
sheet or in the notes thereto. Since the respective dates as of
which information is given in the 2006 10-K and, with respect to
clauses (a)(2) and (c) hereof, except as stated in the SEC
Reports filed since January 1, 2007, (a) none of Ventas
or any Subsidiary has (1) incurred any liability or
obligation, direct or contingent, that is, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect, or
(2) entered into any material transaction not in the ordinary
course of business, (b) there has not been any event or
development in respect of the business or condition (financial or
other) of Ventas and the Subsidiaries that, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect
and (c) there has not been any change in the long-term debt of
Ventas or any of the Subsidiaries or in the authorized
capitalization of Ventas.
(xxv) Regulations T, U, X .
Neither Ventas nor any Subsidiary (or any agent thereof acting on
its behalf other than the Purchasers, as to whom Ventas makes no
representation or warranty) has taken, and none of them will take,
any action that would cause this Agreement or the issuance or sale
of the Securities to violate Section 7 of the 1934 Act or
Regulations T, U or X of the Board of Governors of the Federal
Reserve System, as in effect, or as the same may hereafter be in
effect, at the Closing Time.
(xxvi) Independent Accountants
and Financial Statements . Ernst & Young LLP is an
independent public accountant with respect to Ventas, as required
by the 1933 Act, the 1933 Act Regulations and the 1934 Act. The
historical financial statements, together with the related
financial schedules and notes thereto, included in the 2006 10-K
that relate to Ventas and the Subsidiaries present fairly in all
material respects the consolidated financial position and results
of operations of Ventas and the Subsidiaries at December 31,
2006 and for the fiscal year then ended. Such financial statements
have been prepared in accordance with GAAP applied on a consistent
basis throughout the periods presented (except as disclosed in the
2006 10-K). The supporting schedules of Ventas and the
Subsidiaries, if any, included in the 2006 10-K that relate to
Ventas and the Subsidiaries present fairly in all material respects
in accordance with GAAP the information required to be stated
therein and comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act. The other
financial and statistical information and data included in the 2006
10-K relating to Ventas and the Subsidiaries are accurately
presented in all material respects and prepared on a basis
consistent with the financial statements and the books and records
of Ventas and the Subsidiaries.
(xxvii) Solvency . Each of
the Ventas Entities is and will be, immediately following the
issuance of the Securities at the Closing Time and the consummation
of the Acquisition, Solvent. None of the Ventas Entities is
contemplating either the filing of a petition by it under any
bankruptcy or insolvency laws or the liquidating of all or a
substantial portion of its property, and none of the Ventas
Entities has knowledge of any person contemplating the filing of
any such petition against any of the Ventas Entities. As used
herein, “ Solvent ” shall mean, for any person
on a particular date, that on such date (a) the fair value of
the property of such person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities,
of such person, (b) the
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present fair salable value of the
assets of such person is not less than the amount that will be
required to pay the probable liability of such person on its debts
as they become absolute and matured, (c) such person does not
intend to, and does not believe that it will, incur debts and
liabilities beyond such person’s ability to pay as such debts
and liabilities mature, (d) such person is not engaged in a
business or a transaction, and is not about to engage in a business
or a transaction, for which such person’s property would
constitute an unreasonably small capital and (e) such person
is able to pay its debts as they become due and payable.
(xxviii) No Stabilization or
Manipulation . None of Ventas or any Subsidiary or, to the best
of its knowledge, any of their directors, officers or affiliates
has taken or will take, directly or indirectly, any action designed
to, or that would be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Securities to
facilitate the sale or resale of the Securities.
(xxix) Certain Fees . Except
for the fees set forth in that certain fee letter, dated as of
April 11, 2007, between and among Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch Capital
Corporation, Citigroup Global Markets Inc. and each of the Ventas
Entities (the “ Fee Letter ”), there are no
contracts, agreements or understandings between Ventas or any
Significant Subsidiary and any other person that would give rise to
a valid claim against Ventas, any Significant Subsidiary or the
Purchasers for a brokerage commission, finder’s fee or like
payment in connection with the issuance, purchase and sale of the
Securities.
(xxx) Statistical and Other
Data . All (A) statistical and market-related data and
(B) data (including financial information) with respect to
Kindred Healthcare Inc. or Brookdale Senior Living or the
predecessor entities in the acquisition of VSCRE Holdings, LLC and
IPC AL Real Estate Investment Trust included in the SEC Reports are
based on or derived from sources that the Ventas Entities
reasonably believe to be accurate in all material respects or
represent the Ventas Entities’ good faith estimates that are
made on the basis of data derived from sources the Ventas Entities
reasonably believe to be reliable and accurate in all material
respects.
(xxxi) Sarbanes-Oxley
Compliance . Ventas is in compliance in all material respects
with the applicable provisions of the Sarbanes-Oxley Act of
2002.
(xxxii) Private Placement .
Assuming the accuracy of the representations and warranties of the
Purchasers contained in Section 1(c) hereof, (a) none of
Ventas, its affiliates or any person acting on its or their behalf
has sold or offered to sell or solicited any offer to buy the
Securities by means of any form of general solicitation or
advertising, (b) none of Ventas, its affiliates or any person
acting on its or their behalf has e
