REGISTRATION RIGHTS AGREEMENT by and among Aviv Healthcare Properties Limited Partnership Aviv Healthcare Capital Corporation Aviv REIT, Inc. and the other Guarantors party hereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated as the...
Exhibit 4.2
EXECUTION VERSION
by and among
Aviv Healthcare Properties Limited Partnership
Aviv Healthcare Capital Corporation
Aviv REIT, Inc.
and the other Guarantors party hereto
Aviv Healthcare Capital Corporation
Aviv REIT, Inc.
and the other Guarantors party hereto
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
as the Representative of the several Initial Purchasers
as the Representative of the several Initial Purchasers
Dated as of February 4, 2011
This Registration Rights Agreement (this “Agreement”) is made and entered into as of February
4, 2011, by and among Aviv Healthcare Properties Limited Partnership, a Delaware limited
partnership, and Aviv Healthcare Capital Corporation, a Delaware corporation (collectively, the
“Issuers”), Aviv REIT, Inc. (“Aviv REIT”), a Maryland corporation, and the other guarantors party
hereto (collectively, with Aviv REIT, the “Guarantors”), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, on behalf of itself and as representative of the Initial Purchasers listed on
Schedule A to the Purchase Agreement (as defined below) (collectively, the “Initial Purchasers”),
each of whom has agreed to purchase pursuant to the Purchase Agreement the Issuers’ 7 3/4% Senior
Notes due 2019 (the “Initial Notes”) fully and unconditionally guaranteed by the Guarantors (the
“Guarantees”). The Initial Notes and the Guarantees attached thereto are herein collectively
referred to as the “Initial Securities.”
This Agreement is made pursuant to the Purchase Agreement, dated January 27, 2011 (the
“Purchase Agreement”), among the Issuers, the Guarantors and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, on behalf of itself and as representative of the Initial Purchasers, (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of the
Initial Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Issuers have agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in Section 6(c) hereof.
Affiliate: As defined in Rule 405 under the Securities Act.
Agreement: As defined in the preamble hereto.
Aviv REIT: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Issuers to the registrar under the Indenture
of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of
Initial Securities that were properly tendered and not withdrawn by Holders thereof pursuant to the
Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Issuers under the Securities Act of the Exchange
Securities pursuant to a Registration Statement pursuant to which the Issuers offer the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities that
were properly tendered and not withdrawn in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exchange Securities: The 7 3/4% Senior Notes due 2019, of the same series under the Indenture as
the Initial Notes, and the Guarantees attached thereto, to be issued to Holders in exchange for
Transfer Restricted Securities pursuant to this Agreement and the Exchange Offer.
FINRA: The Financial Industry Regulatory Authority, Inc.
Guarantees: As defined in the preamble hereto.
Guarantors: As defined in the preamble hereto.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 4, 2011, by and among the Issuers, the
Guarantors and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”),
pursuant to which the Securities are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
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Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Issuers of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Issuers: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited liability company, trust,
unincorporated organization or other legal entity, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement (or deemed a part of any Shelf
Registration Statement), as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material incorporated by reference
into such Prospectus and, in respect of any Shelf Registration Statement, including for the
avoidance of doubt any “issuer free writing prospectus” within the meaning of Rule 433 of the
Securities Act.
Purchase Agreement: As defined in the preamble hereto.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities: The Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Shelf Suspension Period: As defined in Section 6(c) hereof.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the
date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act, (b) the date on which such Initial Security has been
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effectively registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Initial Security is distributed to the public by
a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein), (d) the date on
which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities
Act and (e) the date on which such Initial Security ceases to be outstanding under the terms of the
Indenture.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Issuers are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The Securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy, each of the Issuers and the Guarantors shall (i) cause to be filed with the Commission as
soon as practicable after the Closing Date, but in no event later than 105 days after the Closing
Date (or if such 105th day is not a Business Day, the next succeeding Business Day), a Registration
Statement under the Securities Act relating to the Exchange Securities and the Exchange Offer, (ii)
use its reasonable best efforts to cause such Registration Statement to become effective on or
prior to 210 days after the Closing Date (or if such 210th day is not a Business Day, the next
succeeding Business Day) and (iii) upon the effectiveness of such Registration Statement, commence
the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Initial Securities held by Broker-Dealers as
contemplated by Section 3(c) hereof.
(b) The Issuers and the Guarantors shall cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less than 30 days after
the date notice of the Exchange Offer is mailed to the Holders. The Issuers shall cause the
Exchange Offer to comply with all applicable federal and state securities laws. No securities other
than the Exchange Securities shall be included in the Exchange Offer
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Registration Statement. The Issuers shall use their reasonable best efforts to cause the Exchange
Offer to be Consummated no event later than 240 days after the Closing Date (or if such 240th day
is not a Business Day, the next succeeding Business Day) (the “Consummation Deadline”).
(c) The Issuers shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial Securities that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuers), may exchange such Initial Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such “Plan of Distribution” section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission may require in order
to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such
Broker-Dealer or disclose the amount of Initial Securities held by any such Broker-Dealer except to
the extent required by the Commission.
Each of the Issuers and the Guarantors shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and amended as required
by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for
resales of Initial Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the earlier of (i) 180 days from
the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date
on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Issuers shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day period (or shorter period as
provided in the preceding paragraph) in order to facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuers are not required to file an Exchange Offer
Registration Statement or to Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, (ii) for any reason the Exchange Offer is not
Consummated by the Consummation Deadline or (iii) with respect to any Holder of Transfer Restricted
Securities, such Holder notifies the Issuers that (A) such Holder is prohibited by applicable law
or Commission policy from participating in the Exchange Offer, (B)
such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the
public without
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delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, (C) such Holder is a
Broker-Dealer and holds Initial Securities acquired directly from the Issuers or one of their
Affiliates, or (D) such Holder is an Initial Purchaser and holds Initial Securities that have not
been resold and that such Holder acquired directly from the Issuers or one of their Affiliates,
then, upon such Holder’s request, the Issuers and the Guarantors shall:
(x) cause, as promptly as practicable, to be filed a shelf registration statement
pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the “Shelf Registration Statement”), and
which Shelf Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission (1) in the case of clause 4(a)(i) above, by the 90th
day (or if such 90th day is not a Business Day, the next succeeding Business Day) after the
date on which the Issuers determine that they are not permitted to file the Exchange Offer
Registration Statement or Consummate the Exchange Offer, but in any event not earlier than
the 210th day after the Closing Date (or if such 210th day is not a Business Day, the next
succeeding Business Day), (2) in the case of clause 4(a)(ii) above, by the 90th day after
the Consummation Deadline, and (3) in the case of clause 4(a)(iii) above, by the 90th day
after the date on which the Issuers receive notice from a Holder of Transfer Restricted
Securities but in any event, not later than the 210th day after the Closing Date (or if
such 90th or 210th day, as applicable, is not a Business Day, the next succeeding Business
Day).
Each of the Issuers and the Guarantors shall use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Initial Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the effective date of
such Shelf Registration Statement (or such shorter period that will terminate when all the Initial
Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement or are otherwise no longer Transfer Restricted Securities).
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Issuers in writing, within 20 Business Days after receipt of a request
therefor, such information as the Issuers may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
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included therein. Each Holder as to which any Shelf Registration Statement is being effected agrees
to furnish promptly to the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such Holder not materially misleading.
SECTION 5. Additional Interest. The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers and the Guarantors fail to fulfill their obligations under
Section 3 or Section 4 hereof and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Issuers agree that, if (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such effectiveness in
this Agreement, (iii) the Exchange Offer has not been Consummated by the Consummation Deadline or
(iv) the Shelf Registration Statement is filed and declared effective but shall thereafter ceases
to be effective or fails to be usable for its intended purpose without being succeeded immediately
by a post-effective amendment to such Shelf Registration Statement that cures such failure and that
is itself immediately declared effective (each such event referred to in clauses (i) through (iv),
a “Registration Default”), the Issuers shall pay, as liquidated damages for such Registration
Default, additional interest (“Additional Interest”) shall accrue on the Transfer Restricted
Securities over and above the interest set forth in the title of the Transfer Restricted Securities
at the rate of 0.25% per annum during the 90-day period immediately following the occurrence of any
Registration Default. The amount of Additional Interest shall increase by 0.25% per annum at the
end of each subsequent 90-day period until all Registration Defaults are cured, but in no event
shall the aggregate amount of such Additional Interest exceed 1.00% per annum. Notwithstanding the
foregoing, in no event will Additional Interest accrue under more than one of the foregoing clauses
(i) through (iv) at any one time. Any such
Additional Interest on the relevant Transfer Restricted Securities shall be the exclusive monetary
remedy available to the Holders of such Transfer Restricted Securities for any Registration
Default, and a Registration Default shall not constitute a default under the Indenture. Following
the cure of all Registration Defaults relating to any particular Transfer Restricted Securities,
the interest rate borne by the relevant Transfer Restricted Securities will be reduced to the
original interest rate borne by such Transfer Restricted Securities; provided, however, that if
after any such reduction in interest rate, a different Registration Default occurs, the interest
rate borne by the relevant Transfer Restricted Securities shall again be increased pursuant to the
foregoing provisions.
All obligations of the Issuers and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Issuers
and the Guarantors shall comply with all of the provisions of Section 6(c) hereof and
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shall use their reasonable best efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or methods of distribution
thereof.
(i) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Issuers, prior to the Consummation thereof, a written representation to the
Issuers (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an Affiliate of the Issuers,
(B) it is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Securities
to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its
ordinary course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Issuers’ preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the Exchange Securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a secondary
resale transaction and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of
Exchange Securities obtained by such Holder in exchange for Initial Securities acquired by
such Holder directly from the Issuers.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, each of the Issuers and the Guarantors shall comply with all the provisions of Section
6(c) hereof and shall use its reasonable best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto each of the Issuers and the Guarantors will
prepare and file with the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods of distribution
thereof.
(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus
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required to permit resales of Initial Securities by Broker-Dealers), each of the Issuers and the
Guarantors shall:
(i) use its reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements of the Guarantors) for
the period specified in Section 3 or 4 hereof, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein (with
respect to the Prospectus, in the light of the circumstances under which they were made)
not misleading, or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Issuers shall file promptly an
appropriate amendment to such Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause (A) or (B), use its
reasonable best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold or otherwise
cease to be Transfer Restricted Securities; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders named in a Shelf
Registration Statement promptly and, if requested by such Persons, to confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state securities commission of
the qualification of the Transfer Restricted Securities for
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offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event that causes the
Registration Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein to contain an untrue statement of a material fact, or that
requires the making of any additions to or changes in the Registration Statement or the Prospectus
in order to state a material fact required to be stated therein or necessary to make make the
statements therein (with respect to the Prospectus, in the light of the circumstances under which
they were made) not misleading; and if at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or blue sky laws, each
of the Issuers and the Guarantors shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each selling Holder named in
any Shelf Registration Statement, and each of the underwriter(s), if any, before filing with the
Commission, copies of any Shelf Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such Shelf Registration Statement),
which documents will be subject to the review and comment of not more than one counsel to such
Holders and underwriter(s) in connection with such sale, if any, for a period of time not to exceed
five Business Days, and the Issuers will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf Registration Statement or Prospectus
(including all such documents incorporated by reference) to which an Initial Purchaser of Transfer
Restricted Securities covered by such Shelf Registration Statement or the underwriter(s), if any,
shall reasonably object in writing within five Business Days after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission within such period).
The objection of an Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if
such Shelf Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements therein (with respect to
the Prospectus, in the light of the circumstances under which they were made) not misleading;
(v) in the case of a Shelf Registration Statement, make available at reasonable times for
inspection by the Initial Purchasers, the managing underwriter(s), if any, participating in any
disposition pursuant to such Shelf Registration Statement and not more than one law firm or
accounting firm retained by such Initial Purchasers or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of each of the Issuers and the
Guarantors as shall be reasonably requested to
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enable them to exercise any applicable due diligence responsibilities, and cause the Issuers’ and
the Guarantors’ officers, directors and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney or accountant in connection with such Shelf
Registration Statement or any post-effective amendment thereto subsequent to the filing thereof
and prior to its effectiveness and to participate in meetings with investors to the extent
requested by the managing underwriter(s), if any;
(vi) if requested by any selling Holders or the underwriter(s), if any, promptly incorporate
in any Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation, information relating
to the “Plan of Distribution” of the Transfer Restricted Securities, information with respect to
the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the Issuers are notified of
the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(vii) in the case of a Shelf Registration Statement, upon written request, furnish to each
Initial Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, at
least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein by reference);
(viii) deliver to each selling Holder and each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; each of the Issuers and the Guarantors
hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(ix) in the case of a Shelf Registration Statement, enter into such agreements (including an
underwriting agreement), and make such representations and warranties, and take all such other
reasonable actions in connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to such Shelf Registration Statement, all to such
extent as may be reasonably requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale pursuant to such Shelf
Registration Statement; and whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, each of the Issuers and the Guarantors shall:
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(A) furnish to each Initial Purchaser, each selling Holder and each underwriter,
if any, in such substance and scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings, upon the effectiveness of
the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf Registration
Statement, signed by (y) the President or any Vice President and (z) a principal
financial or accounting officer of each Issuer and Guarantor, confirming, as of the
date thereof, the matters set forth in paragraphs (i), (ii) and (iii) of Section
5(g) of the Purchase Agreement and such other matters as such parties may
reasonably request;
(2) an opinion or opinions, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Issuers and the Guarantors, covering
matters similar to those set forth in the opinions delivered pursuant to
Sections 5(c), 5(d) and 5(e) of the Purchase Agreement; and
(3) a customary comfort letter, dated the date of effectiveness of the Shelf
Registration Statement, from the Issuers’ independent accountants, in the customary
form and covering matters of the type customarily requested to be covered in
comfort letters by underwriters in connection with primary underwritten offerings,
and covering or affirming matters similar to those set forth in the comfort letters
delivered pursuant to Section 5(a) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the underwriting agreement, if
any, the indemnification provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably requested by
such parties to evidence compliance with Section 6(c)(ix)(A) hereof and with any customary
conditions contained in the underwriting agreement or other agreement entered into by the
Issuers or any of the Guarantors pursuant to this Section 6(c)(ix), if any;
(x) prior to any public offering of Transfer Restricted Securities, reasonably cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities under the state securities
or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other reasonable acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that none of the Issuers or the Guarantors shall
be required to register or qualify
-12-
as a foreign corporation or other entity where it is not then so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any jurisdiction where it is not then
so subject;
(xi) issue, upon the request of any Holder who is an Initial Purchaser holding Initial
Securities that have not been resold and that such Holder acquired directly from the Issuers or
one of their Affiliates and are covered by the Shelf Registration Statement, Exchange Securities
having an aggregate principal amount equal to the aggregate principal amount of Initial Securities
surrendered to the Issuers by such Holder in exchange therefor or being sold by such Holder; such
Exchange Securities to be registered in the name of such Holder or in the name of the purchaser(s)
of such Securities, as the case may be; in return, the Initial Securities held by such Holder
shall be surrendered to the Issuers for cancellation;
(xii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the underwriter(s), if any,
may request at least two Business Days prior to any sale of Transfer Restricted Securities made by
such Holders or underwriter(s);
(xiii) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or have
occurred, prepare a supplement or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances in which they
were made, not misleading;
(xiv) provide a CUSIP number for all Securities not later than the effective date of the
Registration Statement covering such Securities and provide the Trustee under the Indenture with
printed certificates for such Securities which are in a form eligible for deposit with the
Depository Trust Company and take all other action necessary to ensure that all such Securities
are eligible for deposit with the Depository Trust Company;
(xv) cooperate and assist in any filings required to be made with FINRA and in the
performance of any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with the rules and
regulations of FINRA;
(xvi) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the
-13-
requirements of Rule 158 under the Securities Act (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning
with the first month of the Issuers’ first fiscal quarter commencing after the effective
date of the Registration Statement;
(xvii) cause the Indenture to be qualified under the Trust Indenture Act not later
than the effective date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and the Holders of Securities to
effect such changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and to execute and use
its reasonable best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner; and
(xviii) if not otherwise available on the Commission’s XXXXX system, provide promptly
to each Holder upon request each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15 of the Exchange Act.
Notwithstanding the foregoing, the Issuers will have the ability to suspend the offering and
sale under a Shelf Registration Statement or the time period in which such Shelf Registration
Statement is required to be filed (the “Shelf Suspension Period”), if the Board of Directors of
Aviv REIT determines, in its reasonable business judgment, that the continued effectiveness and use
of the Shelf Registration Statement or the filing thereof would require the disclosure of
confidential information or interfere with any financing, acquisition, reorganization or other
material transaction involving the Issuers or any of the Guarantors. A Shelf Suspension Period
shall commence on and include the date that the Issuers give notice that the Shelf Registration
Statement is no longer effective, the Prospectus included therein is no longer usable for offers
and sales of Transfer Restricted Securities covered by such Registration Statement, or the time
period in which the Shelf Registration Statement is required to be filed has been suspended, and
continue until holders of such Transfer Restricted Securities either (i) receive the copies of the
supplemented or amended Prospectus contemplated by Section 6(c) above, (ii) are advised in writing
by Aviv REIT that use of the Prospectus may be resumed, or (iii) are advised in writing by Aviv
REIT that the time period in which the Shelf Registration Statement is required to be filed is no
longer suspended. The Issuers will not be permitted to exercise their rights under this paragraph
more than twice in any twelve-month period, and any such suspensions may not exceed 60 consecutive
days.
Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Issuers of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof or of any Shelf Suspension Period, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder’s receipt of the copies of the supplemented
or amended Prospectus
-14-
contemplated by Section 6(c)(xiii) hereof, or until it is advised in writing (the “Advice”) by the
Issuers that the use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so directed by the
Issuers, each Holder will deliver to the Issuers (at the Issuers’ expense) all copies, other than
permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In the event the
Issuers shall give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of the giving of such notice pursuant
to Section 6(c)(iii)(D) hereof or notice of any Shelf Suspension Period to and including the date
when each selling Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xiii) hereof or shall have
received the Advice; provided, however, that no such extension shall be taken into account in
determining whether Additional Interest is due pursuant to Section 5 hereof or the amount of such
Additional Interest, it being agreed that the Issuers’ option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of
Section 5 hereof.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Issuers’ and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Issuers and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Initial Purchaser
or Holder with FINRA (and, if applicable, the reasonable fees and expenses of any “qualified
independent underwriter” and its counsel that may be required by the rules and regulations of
FINRA)); (ii) all fees and expenses of compliance with federal securities and state securities or
blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange
Securities to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the Issuers, the Guarantors
and, subject to Section 7(b) hereof, one counsel for the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Exchange Securities on a
securities exchange or automated quotation system pursuant to the requirements thereof; (vi) all
fees and disbursements of independent certified public accountants of the Issuers and the
Guarantors (including the expenses of any special audit and comfort letters required by or incident
to such performance); and (vii) all fees and expenses of the exchange agent and the Trustee,
including the fees and disbursements of their counsel.
Each of the Issuers and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by
the Issuers or the Guarantors.
-15-
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Issuers and the Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer
and/or resold pursuant to the “Plan of Distribution” contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be Cravath, Swaine &
Xxxxx LLP, or such other counsel as may be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. Indemnification.
(a) The Issuers and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder, (ii) each Person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to
in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents of any Holder or
any such controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses (including, without
limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly
caused by, related to, based upon, arising out of or in connection with (1) any untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement (including any
amendment or supplement thereto) or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements therein not
misleading or (2) any untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (including any amendment or supplement thereto) or any omission or alleged omission
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages, liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders furnished in writing to the Issuers by
any of the Holders expressly for use therein. This indemnity agreement shall be in addition to any
liability which the Issuers or any of the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Issuers
or the Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify
-16-
the Issuers and the Guarantors in writing; provided, however, that the failure to give such notice
shall not relieve any of the Issuers or the Guarantors of its obligations pursuant to this
Agreement except to the extent that it has been materially prejudiced by such failure. Such
Indemnified Holder shall have the right to employ its own counsel in any such action and the
reasonable fees and expenses of such counsel shall be paid, as incurred, by the Issuers and the
Guarantors, (regardless of whether it is ultimately determined that an Indemnified Holder is not
entitled to indemnification hereunder; provided, however, that such fees and expenses of counsel
shall not be payable insofar as it is determined that an Indemnified Holder is not entitled to
indemnification because such action or proceeding arose from an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Issuers by any of the
Holders expressly for use therein). The Issuers and the Guarantors shall not, in connection with
any one such action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Issuers and the Guarantors shall be liable for any settlement of any
such action or proceeding effected with the Issuers’ and the Guarantors’ prior written consent,
which consent shall not be withheld unreasonably, and each of the Issuers and the Guarantors agrees
to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with the written consent of
the Issuers and the Guarantors. The Issuers and the Guarantors shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or
otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability arising out of such
action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, the Guarantors and their respective directors and officers
who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) the Issuers or any of the Guarantors, and the
respective officers, directors, partners, employees, representatives and agents of each such
Person, to the same extent as the foregoing indemnity from the Issuers and the Guarantors to each
of the Indemnified Holders, but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the Issuers, the Guarantors or
their respective directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given to the Issuers and the Guarantors,
and the Issuers, the Guarantors, their respective directors and officers and such controlling
person shall have the rights and duties given to each Holder by the preceding paragraph.
-17-
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Issuers and the Guarantors, on the one
hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the
Issuers and the Guarantors shall be deemed to be equal to the total gross proceeds to the Issuers
and the Guarantors from the Initial Placement), the amount of Additional Interest which did not
become payable pursuant to Section 5 hereof as a result of the filing of the Registration Statement
resulting in such losses, claims, damages, liabilities, judgments actions or expenses, and such
Registration Statement, or if such allocation is not permitted by applicable law, the relative
fault of the Issuers and the Guarantors, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative fault
of the Issuers and the Guarantors on the one hand and of the Indemnified Holder on the other shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers or any of the Guarantors, on the one hand, or the Indemnified
Holders, on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph of Section 8(a)
hereof, any legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Issuers, the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Xxxxxxx
0, xxxx of the Holders (and its related Indemnified Holders) shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the total discount received by such
Holder with respect to the Initial Securities exceeds the amount of any damages which such Holder
has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to
-18-
contribute pursuant to this Section 8(c) are several in proportion to the respective principal
amount of Initial Securities held by each of the Holders hereunder and not joint.
SECTION 9. Rule 144A. Each of the Issuers and the Guarantors hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof
and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Securities on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker(s)
and managing underwriter(s) that will administer such offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities included in such
offering; provided, however, that such investment banker(s) and managing underwriter(s) must be
reasonably satisfactory to the Issuers.
SECTION 12. Miscellaneous.
(a) Remedies. Each of the Issuers and the Guarantors hereby agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Issuers and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the Issuers’ or any of the
Guarantors’ securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Issuers will not take any action, or permit any
change to occur, with respect to the Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
-19-
(d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Issuers have (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Issuers or their Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Issuers shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(e) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Issuers or the Guarantors:
Aviv Healthcare Properties Limited Partnership
Aviv Healthcare Capital Corporation
x/x Xxxx REIT, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Chief Executive Officer
Aviv Healthcare Capital Corporation
x/x Xxxx REIT, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Chief Executive Officer
With a copy to:
Sidley Austin LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the
-20-
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein with respect
to the registration rights granted by the Issuers with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
-21-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP |
||||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| AVIV HEALTHCARE CAPITAL CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| AVIV REIT, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| AVIV OP LIMITED PARTNER, L.L.C. and AVIV ASSET MANAGEMENT, L.L.C. |
||||
| By: | Aviv Healthcare Properties Limited Partnership, their sole member | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P. |
||||
| By: | Aviv Healthcare Properties Limited Partnership, its general partner | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| AVIV FINANCING I, L.L.C., AVIV FINANCING II, L.L.C., AVIV FINANCING III, L.L.C., AVIV FINANCING IV, L.L.C. and AVIV FINANCING V, L.L.C. |
||||
| By: | Aviv Healthcare Properties Operating Partnership I, L.P., their sole member | |||
| By: | Aviv Healthcare Properties Limited Partnership, its general partner | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| SKAGIT AVIV, L.L.C. |
||||
| By: | Aviv Financing II, L.L.C., its sole member | |||
| By: | Aviv Healthcare Properties Operating Partnership I, L.P., its sole member | |||
| By: | Aviv Healthcare Properties Limited Partnership, its general partner | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| The entities listed on Schedule I hereto |
||||
| By: | Aviv Financing I, L.L.C., their sole member | |||
| By: | Aviv Healthcare Properties Operating Partnership I, L.P., its sole member | |||
| By: | Aviv Healthcare Properties Limited Partnership, its general partner | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| The entities listed on Schedule II hereto |
||||
| By: | Aviv Financing III, L.L.C., their sole member | |||
| By: | Aviv Healthcare Properties Operating Partnership I, L.P., its sole member | |||
| By: | Aviv Healthcare Properties Limited Partnership, its general partner | |||
| By: | Aviv REIT, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
Schedule I
Subsidiaries of Aviv Financing I, L.L.C.
Alamogordo Aviv, L.L.C.
Arkansas Aviv, L.L.C.
Xxxx Xxxxx, L.L.C.
Aviv Foothills, L.L.C.
Aviv Liberty, L.L.C.
Avon Ohio, L.L.C.
Belleville Illinois, L.L.C.
Bellingham II Associates, L.L.C.
Xxxxxx Harbor, L.L.C.
BHG Aviv, L.L.C.
Bonham Texas, L.L.C.
Xxxxxx NH Property, L.L.C.
California Aviv Two, L.L.C.
California Aviv, L.L.C.
Camas Associates, L.L.C.
Casa/Sierra California Associates, L.L.C.
Chenal Arkansas, L.L.C.
Chippewa Valley, L.L.C.
Clarkston Care, L.L.C.
Xxxxxxx Associates, L.L.C.
Colonial Madison Associates, L.L.C.
Columbia View Associates, L.L.C.
Columbus Texas Aviv, L.L.C.
Columbus Western Avenue, L.L.C.
Commerce Nursing Homes, L.L.C.
CR Aviv, L.L.C.
Denison Texas, L.L.C.
Effingham Associates, L.L.C.
Elite Mattoon, L.L.C.
Elite Yorkville, L.L.C.
Falfurrias Texas, L.L.C.
Xxxxxxxx Heights Associates, L.L.C.
Fountain Associates, L.L.C.
Four Fountains Aviv, L.L.C.
Freewater Oregon, L.L.C.
Arkansas Aviv, L.L.C.
Xxxx Xxxxx, L.L.C.
Aviv Foothills, L.L.C.
Aviv Liberty, L.L.C.
Avon Ohio, L.L.C.
Belleville Illinois, L.L.C.
Bellingham II Associates, L.L.C.
Xxxxxx Harbor, L.L.C.
BHG Aviv, L.L.C.
Bonham Texas, L.L.C.
Xxxxxx NH Property, L.L.C.
California Aviv Two, L.L.C.
California Aviv, L.L.C.
Camas Associates, L.L.C.
Casa/Sierra California Associates, L.L.C.
Chenal Arkansas, L.L.C.
Chippewa Valley, L.L.C.
Clarkston Care, L.L.C.
Xxxxxxx Associates, L.L.C.
Colonial Madison Associates, L.L.C.
Columbia View Associates, L.L.C.
Columbus Texas Aviv, L.L.C.
Columbus Western Avenue, L.L.C.
Commerce Nursing Homes, L.L.C.
CR Aviv, L.L.C.
Denison Texas, L.L.C.
Effingham Associates, L.L.C.
Elite Mattoon, L.L.C.
Elite Yorkville, L.L.C.
Falfurrias Texas, L.L.C.
Xxxxxxxx Heights Associates, L.L.C.
Fountain Associates, L.L.C.
Four Fountains Aviv, L.L.C.
Freewater Oregon, L.L.C.
Fullerton California, L.L.C.
Giltex Care, L.L.C.
Great Bend Property, L.L.C.
Heritage Monterey Associates, L.L.C.
HHM Aviv, L.L.C.
Highland Leasehold, L.L.C.
Xxxxx Associates, L.L.C.
Hot Springs Aviv, L.L.C.
Houston Texas Aviv, L.L.C.
Hutchinson Kansas, L.L.C.
Idaho Associates, L.L.C.
Karan Associates Two, L.L.C.
Karan Associates, L.L.C.
KB Northwest Associates, L.L.C.
Kingsville Texas, L.L.C.
Manor Associates, L.L.C.
Mansfield Aviv, L.L.C.
Massachusetts Nursing Homes, L.L.C.
Minnesota Associates, L.L.C.
Missouri Associates, L.L.C.
Missouri Regency Associates, L.L.C.
Montana Associates, L.L.C.
Mt. Vernon Texas, L.L.C.
Newtown ALF Property, L.L.C.
N.M. Bloomfield Three Plus One Limited Company
N.M. Espanola Three Plus One Limited Company
N.M. Lordsburg Three Plus One Limited Company
N.M. Silver City Three Plus One Limited Company
Northridge Arkansas, L.L.C.
Oakland Nursing Homes, L.L.C.
October Associates, L.L.C.
Xxxxx Associates, L.L.C.
Ohio Aviv, L.L.C.
Omaha Associates, L.L.C.
Orange ALF Property, L.L.C
Orange, L.L.C.
Oregon Associates, L.L.C.
Peabody Associates, L.L.C.
Giltex Care, L.L.C.
Great Bend Property, L.L.C.
Heritage Monterey Associates, L.L.C.
HHM Aviv, L.L.C.
Highland Leasehold, L.L.C.
Xxxxx Associates, L.L.C.
Hot Springs Aviv, L.L.C.
Houston Texas Aviv, L.L.C.
Hutchinson Kansas, L.L.C.
Idaho Associates, L.L.C.
Karan Associates Two, L.L.C.
Karan Associates, L.L.C.
KB Northwest Associates, L.L.C.
Kingsville Texas, L.L.C.
Manor Associates, L.L.C.
Mansfield Aviv, L.L.C.
Massachusetts Nursing Homes, L.L.C.
Minnesota Associates, L.L.C.
Missouri Associates, L.L.C.
Missouri Regency Associates, L.L.C.
Montana Associates, L.L.C.
Mt. Vernon Texas, L.L.C.
Newtown ALF Property, L.L.C.
N.M. Bloomfield Three Plus One Limited Company
N.M. Espanola Three Plus One Limited Company
N.M. Lordsburg Three Plus One Limited Company
N.M. Silver City Three Plus One Limited Company
Northridge Arkansas, L.L.C.
Oakland Nursing Homes, L.L.C.
October Associates, L.L.C.
Xxxxx Associates, L.L.C.
Ohio Aviv, L.L.C.
Omaha Associates, L.L.C.
Orange ALF Property, L.L.C
Orange, L.L.C.
Oregon Associates, L.L.C.
Peabody Associates, L.L.C.
2
Pomona Vista L.L.C.
Prescott Arkansas, L.L.C.
Raton Property Limited Company
Red Rocks, L.L.C.
Richland Washington, L.L.C.
Riverside Nursing Home Associates, L.L.C.
Xxxx Xxxxxxx Park Property L.L.C.
Salem Associates, L.L.C.
San Xxxx NH Property, L.L.C.
Santa Xxx-Xxxxxxxx, L.L.C.
Santa Fe Missouri Associates, L.L.C.
Savoy/Bonham Venture, L.L.C.
Xxxxxx Aviv, L.L.C.
Skyview Associates, L.L.C.
Southeast Missouri Property, L.L.C.
Star City Arkansas, L.L.C.
Sun-Mesa Properties, L.L.C.
Tujunga, L.L.C.
VRB Aviv, L.L.C.
Washington-Oregon Associates, L.L.C.
Watauga Associates, L.L.C.
West Pearl Street, L.L.C.
Xxxxxxx Healthcare Associates, L.L.C.
Xxxxxx Texas Aviv, L.L.C.
Woodland Arkansas, L.L.C.
Xion, L.L.C.
Yuba Aviv, L.L.C.
Prescott Arkansas, L.L.C.
Raton Property Limited Company
Red Rocks, L.L.C.
Richland Washington, L.L.C.
Riverside Nursing Home Associates, L.L.C.
Xxxx Xxxxxxx Park Property L.L.C.
Salem Associates, L.L.C.
San Xxxx NH Property, L.L.C.
Santa Xxx-Xxxxxxxx, L.L.C.
Santa Fe Missouri Associates, L.L.C.
Savoy/Bonham Venture, L.L.C.
Xxxxxx Aviv, L.L.C.
Skyview Associates, L.L.C.
Southeast Missouri Property, L.L.C.
Star City Arkansas, L.L.C.
Sun-Mesa Properties, L.L.C.
Tujunga, L.L.C.
VRB Aviv, L.L.C.
Washington-Oregon Associates, L.L.C.
Watauga Associates, L.L.C.
West Pearl Street, L.L.C.
Xxxxxxx Healthcare Associates, L.L.C.
Xxxxxx Texas Aviv, L.L.C.
Woodland Arkansas, L.L.C.
Xion, L.L.C.
Yuba Aviv, L.L.C.
3
Schedule II
Subsidiaries of Aviv Financing III, L.L.C.
Chatham Aviv, L.L.C.
Hidden Acres Property, L.L.C.
Monterey Park Leasehold Mortgage, L.L.C.
Norwalk ALF Property, L.L.C.
Wellington Leasehold, L.L.C.
Hidden Acres Property, L.L.C.
Monterey Park Leasehold Mortgage, L.L.C.
Norwalk ALF Property, L.L.C.
Wellington Leasehold, L.L.C.
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the
date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Acting on behalf of itself and as the Representative of the several Initial Purchasers
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Director | |||
