EXHIBIT 4.16
VENTAS TRUST
Commercial Mortgage Pass-Through Certificates
Series 2001-VENTAS
CERTIFICATE PURCHASE AGREEMENT
As of December 4, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
One World Financial Center
North Tower--15/th/ Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-1315
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ventas Specialty I, LLC, a Delaware limited liability company (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
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to you (▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ("MLPFS") and ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ & Co. Incorporated ("MSCI"), together, the "Initial Purchasers"), those
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classes (each, a "Class") of the Ventas Trust Commercial Mortgage Pass-Through
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Certificates, Series 2001-VENTAS, specified on Schedule I hereto (the
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"Certificates"). The Certificates will be issued pursuant to a Trust and
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Servicing Agreement to be dated as of the Settlement Date (the "Trust and
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Servicing Agreement"), between the Company, as depositor, First Union National
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Bank, as servicer (in such capacity, the "Servicer") and as special servicer (in
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such capacity, the "Special Servicer"), LaSalle Bank National Association, as
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trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
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Agent"). Ventas Specialty I, Inc. (the "Member"), a Delaware corporation, is the
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sole member of the Company. The Certificates will in the aggregate evidence the
entire beneficial interest of a trust fund (the "Trust Fund") to be established
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by the Company pursuant to the Trust and Servicing Agreement. The Trust Fund
will consist primarily of a single, adjustable-rate, monthly-pay, non-recourse
mortgage loan (the "Mortgage Loan") made to Ventas Finance I, LLC (the
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"Borrower") pursuant to a Loan and Security Agreement dated as of the Settlement
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Date between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc. ("MLMLI") and the Borrower.
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The Company intends to acquire the Mortgage Loan from MLMLI (the "Mortgage Loan
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Seller") pursuant to a Mortgage Loan Purchase Agreement dated as of the
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Settlement Date, 2001 (the "Mortgage Loan Purchase Agreement"), between MLMLI
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and the Company. A real estate mortgage investment conduit ("REMIC") election is
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being made with respect to the Trust Fund with the resulting REMIC being
referred to as "REMIC." The Certificates will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Certificates and
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the Mortgage Loan are described more fully in the Offering Memorandum dated the
date
-1-
hereof (including the annex and exhibits thereto and the accompanying CD-ROM,
the "Offering Memorandum"), which the Company is furnishing to you for purposes
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of resale of the Certificates to a limited number of institutional investors in
a transaction not involving a public offering. The preliminary version of the
Offering Memorandum delivered to prospective investors in the Certificates is
herein referred to as the "Preliminary Offering Memorandum". Capitalized terms
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used but not defined herein shall have the respective meanings assigned thereto
in the Offering Memorandum.
1. Representations and Warranties. Ventas represents and warrants to,
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and agrees with, each Initial Purchaser solely on behalf of itself and with
respect to the condition pertaining to it and set forth in clause (e) of this
Section 1, and the Company represents and warrants to, and agrees with, each
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Initial Purchaser that:
(a) The Company is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to own its properties and to
conduct its business, as described in the Offering Memorandum, and to enter
into and perform its obligations under this Agreement and the Trust and
Servicing Agreement, and is conducting its business so as to comply in all
material respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting business.
(b) This Agreement has been duly authorized by each of Ventas and
the Company and duly executed and delivered by the Company. At or prior to
the Settlement Date (as defined in Section 3), the Company will have
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entered into the Mortgage Loan Purchase Agreement and the Trust and
Servicing Agreement, and the Mortgage Loan Purchase Agreement and the Trust
and Servicing Agreement will have been duly authorized, executed and
delivered by the Company. This Agreement constitutes, and the Mortgage Loan
Purchase Agreement and the Trust and Servicing Agreement, when executed and
delivered by the Company, will constitute, valid and binding agreements of
the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors
generally, and (ii) general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law.
(c) On the Settlement Date, the Certificates and the Trust and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Offering Memorandum; the issuance and
sale of the Certificates have been duly and validly authorized by the
Company. On the Settlement Date, the Certificates, when duly and validly
executed, authenticated and delivered by the Trustee in accordance with the
Trust and Servicing Agreement, will be entitled to the benefits of the
Trust and Servicing Agreement.
(d) None of the sale of the Certificates to the Initial Purchasers
pursuant hereto, the consummation of any other of the transactions
contemplated
herein, or the fulfillment of any of the terms of the Trust and
Servicing Agreement, the Mortgage Loan Purchase Agreement or this
Agreement, will result in the breach of any term or provision of the
certificate of formation or limited liability company agreement of the
Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a
party or by which it is bound, or any statute, order or regulation
applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company. The Company is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it, which materially and adversely affects
the ability of the Company to perform its obligations under this
Agreement, the Trust and Servicing Agreement and the Mortgage Loan
Purchase Agreement.
(e) There are no actions or proceedings against, or
investigations of, the Company or Ventas pending, or, to the knowledge
of Ventas and the Company, threatened, before any court,
administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Mortgage Loan Purchase Agreement, the Trust and
Servicing Agreement or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Mortgage Loan
Purchase Agreement or the Trust and Servicing Agreement, (iii) which
might materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of, this
Agreement, the Mortgage Loan Purchase Agreement, the Trust and
Servicing Agreement or the Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Certificates
described in the Offering Memorandum.
(f) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the offering, issuance or sale of the Certificates pursuant to
this Agreement, the Mortgage Loan Purchase Agreement and the Trust and
Servicing Agreement, except such as have been, or as of the Settlement
Date will have been, obtained or such as may otherwise be required
under applicable state securities laws in connection with the purchase
and offer and sale of the Certificates by the Initial Purchasers and
any recordation of the respective assignments of the Mortgage Loan
Documents to the Trustee pursuant to the Trust and Servicing Agreement
that have not been completed and any UCC Financing Statements that
have not been filed.
(g) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which, singly or in
the aggregate, if the subject of any unfavorable decision, ruling or
finding,
would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company.
(h) Any taxes, fees and other governmental charges
payable by the Company in connection with the execution and delivery
of this Agreement, the Mortgage Loan Purchase Agreement and the Trust
and Servicing Agreement or the issuance and sale of the Certificates
(other than such federal, state and local taxes as may be payable on
the income or gain recognized therefrom), have been or will be paid on
or prior to the Settlement Date, other than any fees in connection
with the recordation of the respective assignments of the Mortgage
Loan Documents to the Trustee pursuant to the Trust and Servicing
Agreement and the filing of any UCC Financing Statements.
(i) Immediately prior to the assignment of the
Mortgage Loan to the Trustee, the Company will have good title to, and
will be the sole owner of, the Mortgage Loan, free and clear of any
pledge, mortgage, lien, security interest or other encumbrance.
(j) The transfer of the Mortgage Loan to the Trustee
and the sale of the Certificates by the Company, at the Settlement
Date, will be treated by the Company for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets
to secure debt.
(k) When the Certificates are issued and delivered
pursuant to this Agreement, the Certificates will not be of the same
class (within the meaning of Rule 144A under the Securities Act) as
securities that are listed on a national securities exchange
registered under Section 6 of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act") or quoted in a U.S. automated
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inter-dealer quotation system.
(l) Neither the Company nor, assuming the accuracy of
the representations and warranties and the performance of the
covenants contained herein on the part of the Initial Purchasers, any
person acting on its behalf has (i) offered or sold, in the United
States, its territories and possessions, or to, or for the account or
benefit of, any U.S. person (as defined below), any Certificate or
interest therein by any form of general solicitation or general
advertising within the meaning of Rule 502(c) of the Securities Act,
or (ii) with respect to any Certificate or interest therein sold
outside the United States, its territories and possessions, to, or for
the account or benefit of, a non-U.S. person, made any directed
selling efforts in the United States, its territories and possessions,
within the meaning of Rule 902 under the Securities Act, or (iii)
taken any other action that would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of
any Certificate a violation of Section 5 of the Securities Act or any
state securities law or would require registration or qualification
pursuant thereto. In addition, the Company will not act, nor has it
authorized nor will it authorize any person to act, in any matter set
forth in the foregoing sentence with respect to the Certificates. For
purposes of this
Agreement, "U.S. person" has the meaning assigned thereto in Rule 902(k)
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under the Securities Act.
(m) Within the preceding six months, neither the Company nor assuming
the accuracy of the representations and warranties and the performance of
the covenants contained herein on the part of the Initial Purchasers, any
other person acting on behalf of the Company has offered or sold to any
person any securities (in addition to the Certificates) that would be
considered part of the offering of the Certificates within the meaning of
Rule 502 under the Securities Act. The Company will take reasonable
precautions designed to insure that any offer or sale, direct or indirect,
in the United States, its territories and possessions, or to, or for the
account or benefit of, any U.S. person of any securities substantially
similar to the Certificates issued by the Company, within six months
subsequent to the date on which the offering of the Certificates has been
completed, is made under restrictions and/or other circumstances reasonably
designed not to affect the status of the offer and sale of the Certificates
in the United States, its territories and possessions, and to U.S. persons
contemplated by this Agreement as transactions exempt from the registration
provisions of the Securities Act.
(n) Assuming the accuracy of the representations and warranties and
the performance of the covenants contained herein on the part of the
Initial Purchasers, any sale of a Certificate or interest therein made by
the Company or any person acting on its behalf outside the United States,
its territories and possessions, to a non-U.S. Person has been and will be
so made in accordance with Regulation S under the Securities Act; and, with
respect to such Certificate or interest therein, the Company, any
affiliates of the Company and any person acting on its or their behalf has
complied with and will implement "offering restrictions" within the meaning
of Rule 902 under the Securities Act.
(o) As of the date hereof and at the Settlement Date, the Offering
Memorandum and the Preliminary Offering Memorandum and the other Disclosure
Materials (as defined below), as amended or supplemented as of any such
time, did not and will not contain an untrue statement of a material fact
and did not and will not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, the Company makes no
representations or warranties as to the information contained in or omitted
from (x) the first and second sentences of the last paragraph on the cover
page and (y) the first and second sentences of the first paragraph and the
second paragraph under the heading "Method of Placement" of the Offering
Memorandum or the Preliminary Offering Memorandum, or any amendment thereof
or supplement thereto (the "Purchasers' Information").
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(p) The Trust and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Neither
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the Company nor the Trust Fund is an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
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2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at a purchase price
equal to the percentage of the aggregate principal amount thereof as of the
Settlement Date and as set forth on Schedule I hereto, Certificates of each
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Class thereof having the actual principal amount set forth next to such
Purchaser's name on Schedule I hereto.
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3. Delivery and Payment. The closing for the purchase and sale of the
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Certificates as contemplated hereby (the "Closing") shall be conducted at the
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offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇:00 AM (New
York City time) on or about December 12, 2001, which date and time may be
postponed by mutual agreement between the Company and the Initial Purchasers
(such date and time being referred to as the "Settlement Date"). Delivery of the
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Class A, Class B, Class C, Class D, Class E and Class F (the "Regular
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Certificates") will be made in book-entry form through the facilities of The
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Depository Trust Company ("DTC") and, in the case of any Regular Certificates to
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be delivered to non-U.S. persons, the facilities of Clearstream Banking, societe
anonynme, and the Euroclear System. Each Class of Regular Certificates will be
represented by one or more definitive global Certificates to be deposited by or
on behalf of the Company with DTC. The Class R Certificates (the "Residual
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Certificates") will be delivered to the Initial Purchasers at the Closing in
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fully registered, certificated form. Delivery of the Certificates shall be made
to the Initial Purchasers against payment by the Initial Purchasers of the
purchase price therefor to or upon the order of the Company by wire transfer of
immediately available funds to such account as may be acceptable to the Company.
The Residual Certificates shall be registered in such names and in such
denominations as the Initial Purchasers may request not less than two full
business days in advance of the Settlement Date.
The Company agrees to have the Certificates available for inspection,
checking and, in the case of the Residual Certificates, packaging by the Initial
Purchasers in New York, New York, no later than 1:00 p.m., on the business day
prior to the Settlement Date.
4. Representations, Warranties and Covenants of the Initial Purchasers.
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Each Initial Purchaser (severally and not jointly with the other Initial
Purchaser) represents and warrants to and agrees with the Company and the other
Initial Purchaser that:
(a) Such Initial Purchaser is an "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) promulgated
pursuant to the Securities Act or an entity in which each of the equity
owners come within such paragraphs (an "Institutional Accredited
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Investor").
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(b) Such Initial Purchaser has been furnished with all information
regarding (i) the Company, (ii) the Certificates, (iii) the nature,
performance and servicing of the Mortgage Loan, (iv) the Trust and
Servicing Agreement and (v) any credit enhancement mechanism associated
with the Certificates, that it has requested.
(c) Such Initial Purchaser has not offered or sold, and shall not
offer or sell, any Certificate or interest therein in the United States,
its territories and possessions, or to, or for the account or benefit of, a
U.S. person unless: (i) such transaction is made in accordance with Rule
144A under the Securities Act; and (ii) such Initial Purchaser shall
reasonably believe that at such time such person is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act (a "Qualified Institutional Buyer") that is purchasing such Certificate
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for its own account or the account of another Qualified Institutional
Buyer.
(d) Such Initial Purchaser has not offered or sold, and shall not
offer or sell, any Certificate or interest therein in the United States,
its territories and possessions, or to, or for the account or benefit of, a
U.S. person by any form of general solicitation or general advertising
(within the meaning of Rule 502(c) under the Securities Act), including,
but not limited to, any advertisement, article, magazine or similar medium
or broadcast over television or radio or any seminar or meeting whose
attendees have been invited by any general solicitation or advertising (as
those terms are used in Regulation D promulgated pursuant to the Securities
Act); and, with respect to any Certificates sold outside the United States,
its territories and possessions, to non-U.S. persons, none of such Initial
Purchaser, any affiliates of such Initial Purchaser or anyone acting on its
or their behalf has made any directed selling efforts in the United States,
its territories and possessions, within the meaning of Rule 902 of the
Securities Act. In addition, such Initial Purchaser has not taken, and
shall not take, any other action that would constitute a distribution of
any Certificate under the Securities Act, would render the disposition of
any Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification pursuant
thereto. Such Initial Purchaser will not act, nor has it authorized nor
will it authorize any person to act, in any manner set forth in the prior
two sentences with respect to the Certificates.
(e) Any sale of any Certificates or interest therein made by such
Initial Purchaser or anyone acting on its behalf outside the United States,
its territories and possessions, to non-U.S. persons has been and will be
so made in accordance with Regulation S under the Securities Act.
(f) Such Initial Purchaser (A) has not offered or sold and, prior to
the date six months after the Settlement Date, will not offer or sell any
Certificates to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of
Securities Regulations 1995, (B) in relation to its acts or omissions prior
to December 1, 2001, (1) has complied, and will comply, with all applicable
provisions of the Financial Services Act 1986 with respect to anything done
by it in relation to the Certificates in, from or otherwise involving the
United Kingdom and (2) has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issuance of the Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom
the document may otherwise lawfully be issued or passed on, and (C) in
relation to its acts or omissions on or after December 1, 2001, (1) will
comply with all applicable provisions of the Financial Services and Markets
Act 2000 with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom, and (2)
will only communicate in the United Kingdom any invitation or inducement in
connection with the Certificates to a person who is of a kind described in
Article 19 or Article 49 of The Financial Services and Markets Act 2000
(Financial Promotion) Order 2001 or is a person to whom the invitation or
inducement may otherwise lawfully be communicated.
(g) Such Initial Purchaser shall not sell to any person any of the
Certificates unless, if required by law, such Initial Purchaser has
provided to such person a copy of the Offering Memorandum prior to
settlement of such transaction, provided that the Initial Purchasers have
been provided with sufficient copies of the Offering Memorandum.
Such Initial Purchaser will not sell or otherwise transfer any
Certificate or interest therein, except in compliance with the provisions
of the Trust and Servicing Agreement.
(h) In connection with the purchase of any Class R Certificates by
such Initial Purchaser, such Initial Purchaser shall execute and deliver to
the Company, the Trustee and anyone else required under the Trust and
Servicing Agreement a Transfer Affidavit and Agreement in the form of
Exhibit H-1 to the Trust and Servicing Agreement.
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It is understood and agreed that the Certificates are being purchased by
the Initial Purchasers with a view towards the resale thereof, consistent with
the foregoing.
5. Certain Covenants of the Company. The Company agrees with the Initial
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Purchasers as follows:
(a) During the period from the date hereof until the earlier of the
90th day hereafter and the day on which all the Certificates have been sold
by the Initial Purchasers, the Company shall not make any amendment or
supplement to the Offering Memorandum if such amendment or supplement shall
be reasonably disapproved by the Initial Purchasers promptly after
reasonable notice thereof.
(b) During the period from the date hereof until the earlier of
the 90th day hereafter and the day on which all the Certificates have been
sold by the Initial Purchasers, the Company shall furnish the respective
Initial Purchasers with copies of the Offering Memorandum (or any amendment
thereof or supplement thereto) in such quantities as each Initial Purchaser
may from time to time reasonably request.
(c) If, during the period from the date hereof until the earlier
of the 90th day hereafter and the day on which all the Certificates have
been sold by the Initial Purchasers, any event shall have occurred as a
result of which the Offering Memorandum as then amended or supplemented
would include 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 under which they were made when the Offering
Memorandum is delivered by the Company to the Initial Purchasers, not
misleading, or, if for any other reason it shall, in the judgment of the
Company, be necessary or desirable during such period to amend or
supplement the Offering Memorandum, the Company shall notify the Initial
Purchasers and, upon their request, prepare (in a form reasonably
acceptable to the Initial Purchasers) and furnish without charge to the
respective Initial Purchasers as many copies as each Initial Purchaser may
from time to time reasonably request of an amended Memorandum or a
supplement to the Offering Memorandum which will correct such statement or
omission or effect such compliance.
(d) The Company shall furnish, or shall cause the Trust and
Servicing Agreement to require the Servicer and/or the Trustee to furnish,
upon request, to holders and prospective purchasers of the Certificates
information satisfying the requirements of subsection (d)(4)(i) of Rule
144A under the Securities Act.
(e) If required by either Initial Purchaser, the Company shall
use its best efforts, in cooperation with the Initial Purchasers, to
qualify the Regular Certificates for offering and sale under the applicable
securities laws of such jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect as long as
required for the sale of the Regular Certificates; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or qualify as a foreign limited liability company or as a dealer
in securities in any jurisdiction in which it is not otherwise so subject.
6. Indemnification and Contribution.
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(a) Ventas and the Company shall jointly and severally indemnify and hold
harmless each Initial Purchaser and MLMLI, their officers and directors, and
each person, if any, who controls such Initial Purchaser or MLMLI within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (the "ML/MSCI Parties"), as follows:
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(i) against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (A) the breach by the Company or Ventas of any representation,
warranty or covenant hereunder or under any Loan Document or (B) any untrue
statement or alleged untrue statement of a material fact contained in any
of the Disclosure Materials or the omission or alleged omission to state in
any of the Disclosure Materials (in the case of Disclosure Materials other
than the Offering Memorandum and any Preliminary Offering Memorandum, when
read together with the Offering Memorandum) any material fact necessary in
order to make the statements in such Disclosure Materials, in the light of
the circumstances under which they were made, not misleading, but only if
and to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is not contained in the Purchasers'
Information.
(ii) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of or based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company as
contemplated by Section 6(e); and
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(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by such
ML/MSCI Party), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under clause (i) or clause (ii) above.
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Notwithstanding the foregoing, the indemnity provided for in this
subsection (a) with respect to any loss, claim, damage, liability, cost or
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expense referred to in clauses (i), (ii) and (iii) above and arising out of or
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Offering Memorandum or any
Computational Information, or any revision or amendment of or supplement to any
such document, shall not inure to the benefit of any ML/MSCI Party (or any
officer, director or controlling person in respect thereof) from whom the person
asserting such loss, claim, damage, liability, cost or expense purchased the
Certificates which are the subject thereof if: (i) in the case of any
Preliminary Offering Memorandum (or any revision or amendment thereof or
supplement thereto), MLPFS, MLMLI or MSCI, as applicable, did not deliver to
such person a copy of the Offering Memorandum (or
the Offering Memorandum as most recently amended or supplemented) at or prior to
the settlement of the sale of the subject Certificates to such person, the
untrue statement or alleged untrue statement or omission or alleged omission
made in such Preliminary Offering Memorandum was corrected in the Offering
Memorandum (or the Offering Memorandum as most recently amended or supplemented)
and such correction would have cured the defect giving rise to any such loss,
claim, damage, liability, cost or expense; and (ii) in the case of any
Computational Information (or any revision or amendment of or supplement to any
such document), the Company notified such Initial Purchaser in writing of the
error that gave rise to the untrue statement or alleged untrue statement or
omission or alleged omission or provided in written or electronic format
information superseding or correcting such error not less than five (5) business
days prior to the time of settlement of the sale of the subject Certificates to
such person and such Initial Purchaser failed to deliver to such person
corrected materials (or, if the superseding or correcting information was
contained in the Offering Memorandum, failed to deliver to such person the
Offering Memorandum) at or prior to settlement of such sale to such person. This
indemnity agreement will be in addition to any liability that the Company may
otherwise have.
(b) Each Initial Purchaser (severally and not jointly) shall indemnify
and hold harmless the Company, its officers and directors, and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon untrue statements or omissions, or alleged untrue
statements or omissions, made in the Offering Memorandum (or any amendment
thereto) in reliance upon and in conformity with written information furnished
to the Company by MLPFS (on behalf of itself and MLMLI) or MSCI, as applicable,
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto). It is hereby acknowledged that the Purchasers' Information will
constitute the only written information furnished to the Company by either
Initial Purchaser expressly for use in the Offering Memorandum (or any amendment
thereto).
For purposes of this Section 6:
---------
"Disclosure Materials" consist of: (i) the Offering Memorandum
--------------------
(including, without limitation, all exhibits and the annex thereto and the
accompanying CD-ROM), any and all revisions and amendments thereof and
supplements thereto, and the Preliminary Offering Memorandum (including,
without limitation, all exhibits and the annex thereto and any accompanying
CD-ROM); (ii) any and all Computational Information relating to the
Certificates that have been made available for review by any prospective
investor, including without limitation the Preliminary Term Sheet included
as an exhibit to the Preliminary Offering Memorandum and the Term Sheet
included as an exhibit to the Offering Memorandum; (iii) any and all other
summaries, reports, documents and written and electronic materials and
information, including without limitation, legal documents and appraisals,
environmental site, engineering and any other third party due diligence
reports, in each case relating to the Borrower, the Sponsor, the Depositor,
the Master Lease, the Mortgage Loan, the Mortgaged Properties, or the
Kindred Group or any of its constituent entities furnished by the
Company or any of its affiliates to, or otherwise made available by the
Company or any of its affiliates for review by, prospective investors in
the Certificates; and (iv) any and all other summaries, reports, documents
and written and electronic materials, including (x) the report entitled
"CMBS Product Review: The Nursing Home Industry" covered by the letter
dated November 1, 2001 from Ventas to MLPFS and attached thereto and (y)
the operating statement materials covered by the indemnification letter
dated November 30, 2001 from Ventas, Inc. to MLPFS (the letters described
in clauses (x) and (y), the "Ventas Letters"), that were furnished to
--------------
prospective investors in the Certificates and that are not covered by any
of clauses (i) through (iii) of this paragraph. This Agreement constitutes
----------- -----
the entire agreement between the parties hereto with respect to the
indemnification to be provided in connection with the offering of the
Certificates and shall supersede all other agreements entered into by them,
written or otherwise, including the Ventas Letters, in all respects.
"Computational Materials" consist of any statistical information
-----------------------
delivered by either Initial Purchaser to a prospective investor in the
Certificates, which statistical information is similar to "Computational
Materials" within the meaning of the no-action letter dated May 20, 1994,
issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
----------
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co, Incorporated and ▇▇▇▇▇▇ Structured
Asset Corporation and the no-action letter dated May 27, 1994, issued by
the Division of Corporation Finance of the Commission to the Public
Securities Association; and
"ABS Term Sheets" consist of any term sheets delivered by either
---------------
Initial Purchaser to a prospective investor in the Certificates, which term
sheets are similar to "ABS Term Sheets" within the meaning of the no-action
letter dated February 17, 1995, issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (such ABS
Term Sheets, together with the Computational Materials, the "Computational
-------------
Information").
-----------
(c) Promptly after receipt by any person entitled to indemnification
under this Section 6 (an "Indemnified Party") of notice of the commencement of
--------- -----------------
any action, such Indemnified Party will, if a claim in respect thereof is to be
made against the party providing indemnification (the "Indemnifying Party")
------------------
under this Section 6, notify the Indemnifying Party in writing of the
---------
commencement thereof; but the omission so to notify the Indemnifying Party will
not relieve it from any liability that it may have to any Indemnified Party
under this Section 6 (except to the extent that such omission has prejudiced the
---------
Indemnifying Party in any material respect) or from any liability which it may
have otherwise than under this Section 6.
---------
(d) In case any such action is brought against any Indemnified Party
and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the Indemnified Party promptly
after receiving the aforesaid notice from such Indemnified Party, to assume the
defense thereof, with counsel selected by the
Indemnifying Party and satisfactory to such Indemnified Party; provided,
however, that if the defendants in any such action include both the Indemnified
Party and the Indemnifying Party and the Indemnified Party or Parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other Indemnified Parties that are different from or additional to those
available to the Indemnifying Party, the Indemnified Party or Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties. Upon receipt of notice from the Indemnifying Party
to such Indemnified Party of its election so to assume the defense of such
action and approval by the Indemnified Party of counsel, the Indemnifying Party
will not be liable for any legal fees or expenses of separate counsel
subsequently incurred by such Indemnified Party in connection with the defense
thereof, unless (i) the Indemnified Party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence of this Section 6(d) (it being understood,
however, that the Indemnifying Party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel), approved by the
Indemnified Party or Parties representing all such Indemnified Parties who are
parties to such action), (ii) the Indemnifying Party shall not have employed
counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
for the Indemnified Party at the expense of the Indemnifying Party; and except
that, if clause (i) or clause (iii) is applicable, such liability shall only be
--------- -----------
in respect of the counsel referred to in such clause (i) or clause (iii).
--------- -----------
(e) If an Indemnifying Party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the Indemnified Party or, if such settlement provides for the full release of
the Indemnified Party in connection with all matters relating to the proceeding
that have been asserted against the Indemnified Party in such proceeding by the
other parties to such settlement and does not provide for any admission of
liability or fault by such Indemnified Party, without the consent of the
Indemnified Party. However, each Indemnifying Party agrees that, if at any time
an Indemnified Party shall have requested such Indemnifying Party to reimburse
such Indemnified Party for fees and expenses of counsel, such Indemnifying Party
shall be liable for any settlement or compromise or consent to the entry of any
judgment effected with respect to any litigation, investigation, proceeding
(commenced or threatened) or claim in respect of which indemnification or
contribution could be sought under this Section 6 (whether or not the
---------
Indemnified Party or Parties are actual or potential parties thereto), without
such Indemnifying Party's written consent if (i) such settlement, compromise or
judgment is entered into more than 45 days after receipt by such Indemnifying
Party of the aforesaid request, (ii) such Indemnifying Party shall have received
notice of the terms of such settlement, compromise or judgment at least 30 days
prior to such settlement, compromise or judgment being entered into and (iii)
such Indemnifying Party shall not have reimbursed such Indemnified Party in
accordance with such request prior to the date of such settlement, compromise or
judgment.
(f) If the indemnification provided for in this Section 6 is
---------
unavailable to an Indemnified Party, or insufficient to hold it harmless, in
respect of any losses,
claims, damages, liabilities, costs or expenses referred to in and intended to
be covered under Section 6(a) or (b) of this Agreement, then the Indemnifying
------------------
Party shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities, costs or expenses, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and Ventas on the one hand and the Initial Purchasers on the
other hand from the offering of the Certificates or (ii) if the allocation
provided by clause (i) is not permitted under applicable law or if the
Indemnified Party failed to give the notice required under Section 6(e), in such
-----------
proportion as is appropriate to reflect not only the relative benefits referred
to in the preceding clause (i) but also the relative fault of the Company and
---------
Ventas on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and Ventas on the one hand, and the
Initial Purchasers on the other, in connection with the offering of the
Certificates shall be deemed to be in the same respective proportions that the
total net proceeds from the offering of the Certificates (before deducting
expenses) received by the Company and the total Purchasers' Compensation
(defined below) received by the Initial Purchasers in respect thereof bear to
the aggregate offering price of the Certificates. The relative fault of the
Company and Ventas, on the one hand, and the Initial Purchasers, 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 respective
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
In no event shall either MLPFS (on behalf of itself) or MSCI be
obligated to contribute an amount that is more than the sum of (i) the
difference between the aggregate price at which it acquired the Certificates
purchased by it hereunder and the aggregate price at which it sold such
Certificates and (ii) the fees paid to such Initial Purchaser in connection with
the offering of the Certificates (such amount with respect to either Initial
Purchaser, the "Purchaser's Compensation," and with respect to both Initial
------------------------
Purchasers, the "Purchasers' Compensation").
------------------------
(g) The parties hereto agree that it would not be just and
equitable if contribution pursuant to Section 6(f) above were determined by pro
-----------
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in Section 6(f)
-----------
above. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities, costs or expenses referred to above 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 (except where the
Indemnified Party is required to bear such expenses pursuant to this Section 6),
---------
which expenses the Company shall pay as and when incurred, at the request of the
Indemnified Party. If and to the extent that any expenses so paid by the
Indemnifying Party are subsequently determined to not be required to be borne by
the Indemnifying Party hereunder, the Indemnified Party which received such
payment shall promptly refund the amount so paid to the Indemnifying Party. 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.
(h) Without limiting the generality or applicability of any
other provision of this Agreement, the respective officers and directors of each
ML/MSCI Party and each person, if any, who controls such ML/MSCI Party within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, shall be third-party beneficiaries of the provisions of this
Section 6.
---------
(i) The indemnity and contribution agreements contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
---------
any termination of this Agreement, (ii) any investigation made by the Company,
the Member, Ventas, either Initial Purchaser, MLMLI, any of their respective
directors or officers, or any person controlling the Company, the Member,
Ventas, either Initial Purchaser or MLMLI and (iii) acceptance of any payment
for any of their Certificates.
(j) The remedies provided for in this Section 6 are not
---------
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Party at law or in equity. The obligations of the
Initial Purchasers in Section 6(f) and (g) to contribute are several in
proportion to their respective purchase obligations and not joint.
7. Conditions to the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the Initial Purchasers to purchase the Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company contained herein
as of the date hereof and as of the Settlement Date, to the accuracy in all
material respects of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance in all material
respects by the Company of its obligations hereunder and to the following
additional conditions with respect to the Certificates:
(a) The Initial Purchasers shall have received the Offering
Memorandum.
(b) The Initial Purchasers shall have received a
certificate, dated the Settlement Date and executed by an executive
officer of the Company, to the effect that: (i) the representations
and warranties of the Company in this Agreement are true and correct
in all material respects at and as of the Settlement Date; and (ii)
the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Settlement Date.
(c) The Initial Purchasers shall have received with respect
to each of the Company, the Member and Ventas a good standing
certificate from the Secretary of State of the State of Delaware,
dated not earlier than ten days prior to the Settlement Date.
(d) The Initial Purchasers shall have received from the
Secretary or an assistant secretary of Ventas, in his or her
individual capacity, a certificate, dated the Settlement Date, to the
effect that: (i) each individual who, as an officer or representative
of Ventas, signed this Agreement or any other document or certificate
delivered on or before the Settlement Date in connection with the
transactions contemplated by this Agreement, the Mortgage Loan
Purchase Agreement or the Trust and Servicing Agreement, was at the
respective times of such signing and delivery, and is as of the
Settlement Date, duly elected or appointed, qualified and acting as
such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act
or omission on the part of Ventas) has occurred since the date of its
good standing certificates referred to in paragraph (c) above which
------------
has affected the good standing of Ventas under the laws of the State
of Delaware. The certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary
of Ventas) of the certificate of incorporation and by-laws of Ventas,
each as in effect on the Settlement Date, and of all resolutions of
the board of directors of Ventas required in connection with the
authorization of the transactions contemplated by this Agreement, the
Mortgage Loan Purchase Agreement and the Trust and Servicing
Agreement.
(e) The Initial Purchasers shall have received from the
Secretary or an assistant secretary of the Member, in his or her
individual capacity, a certificate, dated the Settlement Date, to the
effect that: (i) each individual who, as an officer or representative
of the Member, signed any document or certificate delivered on or
before the Settlement Date in connection with the transactions
contemplated by this Agreement, the Mortgage Loan Purchase Agreement
or the Trust and Servicing Agreement, was at the respective times of
such signing and delivery, and is as of the Settlement Date, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures; and (ii) no
event (including, without limitation, any act or omission on the part
of the Member) has occurred since the date of its good standing
certificates referred to in paragraph (c) above which has affected the
------------
good standing of the Member under the laws of the State of Delaware.
The certificate shall be accompanied by true and complete copies
(certified as such by the Secretary or an assistant secretary of the
Member) of the certificate of incorporation and by-laws of the Member,
each as in effect on the Settlement Date, and of all resolutions of
the board of directors of the Member required in connection with the
authorization of the transactions contemplated by this Agreement, the
Mortgage Loan Purchase Agreement and the Trust and Servicing
Agreement.
(f) The Initial Purchasers shall have received from an
officer of the Company, in his or her individual capacity, a
certificate, dated the Settlement Date, to the effect that: (i) each
individual who, as an officer or representative of the Company, signed
this Agreement, the Mortgage Loan Purchase Agreement,
the Trust and Servicing Agreement or any other document or certificate
delivered on or before the Settlement Date in connection with the
transactions contemplated by this Agreement, the Mortgage Loan
Purchase Agreement or the Trust and Servicing Agreement, was at the
respective times of such signing and delivery, and is as of the
Settlement Date, duly elected or appointed, qualified and acting as
such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act
or omission on the part of the Company) has occurred since the date of
its good standing certificate referred to in paragraph (c) above which
-------------
has affected the good standing of the Company under the laws of the
State of Delaware. The certificate shall be accompanied by true and
complete copies (certified as such by such officer of the Company) of
the certificate of formation and the limited liability company
agreement of the Company, each as in effect on the Settlement Date,
and of all required consents of the sole member of the Company
relating to the transactions contemplated by this Agreement, the
Mortgage Loan Purchase Agreement and the Trust and Servicing
Agreement.
(g) The Initial Purchasers shall have received from
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Company, the Member
and Ventas, written opinions addressing, among other things,
enforceability and general corporate matters in form and substance
satisfactory to the Initial Purchasers, dated the Settlement Date and
addressed to the Initial Purchasers, each of the other parties to the
Trust and Servicing Agreement and each of the Rating Agencies.
(h) The Initial Purchasers shall have received from ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Company, the Member and Ventas, a written
opinion addressing, among other things, enforceability, tax, ERISA,
the Investment Company Act of 1940, as amended, the Trust Indenture
Act of 1939, as amended and the Securities Act of 1933, as amended,
and disclosure matters, in form and substance satisfactory to the
Initial Purchasers, dated the Settlement Date and addressed to the
Initial Purchasers, each of the other parties to the Trust and
Servicing Agreement and each of the Rating Agencies.
(i) The Initial Purchasers shall have received from ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Company, a written opinion addressing, among
other things, bankruptcy matters, in form and substance satisfactory
to the Initial Purchasers, dated the Settlement Date and addressed to
the Initial Purchasers, each of the other parties to the Trust and
Servicing Agreement and each of the Rating Agencies.
(j) The Initial Purchasers shall have received from Sidley,
Austin, Brown & Wood, counsel to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, a letter addressing the contents of the Offering
Memorandum, in form and substance satisfactory to the Initial
Purchasers, dated the Settlement Date and addressed to the Initial
Purchasers, each of the other parties to the Trust and Servicing
Agreement and each of the Rating Agencies.
(k) The Initial Purchasers shall have received from ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, special health care regulatory counsel to Ventas, a written
opinion addressing disclosure matters, including the accuracy of the
description in the Offering Memorandum of the regulation of skilled
nursing facilities, in form and substance satisfactory to the Initial
Purchasers, dated the Settlement Date and addressed to the Initial
Purchasers.
(l) The Initial Purchasers shall have received all other
opinions rendered to the rating agencies identified on Schedule I
----------
hereto, by counsel to Ventas, the Company and the Member and each such
opinion shall be dated the Settlement Date and addressed to the
Initial Purchasers.
(m) The Initial Purchasers shall have received such other
opinions, certificates and documents as the Initial Purchasers may
reasonably require, reasonably satisfactory in form and substance to
them, for the purpose of enabling the Initial Purchasers and their
counsel to pass upon the issuance and sale of the Certificates as
herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(n) The Initial Purchasers shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, certified public accountants, a letter, dated as of the date
of the Offering Memorandum, in form and substance satisfactory to the
Initial Purchasers and counsel for the Initial Purchasers, stating in
effect that, using the assumptions and methodology used by the
Company, all of which shall be described in such letter, they have
recalculated such numbers and percentages set forth in the Offering
Memorandum as the Initial Purchasers may reasonably request and as are
agreed to by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, compared the results of their
calculations to the corresponding items in the Offering Memorandum,
and found each such number and percentage set forth in the Offering
Memorandum to be in agreement with the results of such calculations.
(o) The respective Classes of Certificates (other than the
Class R Certificates) shall have been rated as specified in Schedule I
----------
and such ratings shall not have been rescinded.
(p) Since the date of the Offering Memorandum there shall
not have been in the opinion of the Initial Purchasers any material
adverse change in the condition, financial or otherwise, in the
earnings, business affairs or business prospects of (i) Ventas and its
affiliates considered as one enterprise, (ii) the Kindred Group and
(iii) the Mortgaged Properties.
(q) As of the Settlement Date, each Initial Purchaser shall
have received funding for the full amount of its percentage of the
Initial Aggregate Certificate Principal Balance as set forth on
Schedule I hereto from investors solicited by it to purchase the
Certificates, or will have made the determination in its sole
discretion that such funding will be provided by such investors.
(r) The structuring fees and expenses payable to (x) MLPFS
shall be paid to it on the Settlement Date in an amount and as set
forth in the letter dated July 11, 2001 from MLPFS to Ventas and (y)
MSCI, shall be paid to it on the Settlement Date in an amount as
separately agreed to by Ventas and MSCI, whether in writing or
otherwise, provided that, such amount shall be not less than $225,000.
If any condition specified in this Section 7 shall not have
---------
been fulfilled in all material respects when and as provided by this
Agreement, or if any of the opinions and certificates mentioned above
in this Section 7 or elsewhere in this Agreement shall not be in all
---------
material respects reasonably satisfactory in form and substance to the
Initial Purchasers and counsel for the Initial Purchasers, this
Agreement and all obligations of the Initial Purchasers hereunder may
be cancelled at, or at any time prior to, the Settlement Date by the
Initial Purchasers, and such termination shall be without liability of
any party to any other party, except as provided in Section 6 and
---------
except that Section 1 and Section 9 shall survive any such termination
--------- ---------
and remain in full force and effect. Notice of such cancellation shall
be given to the Company in writing, or by telephone or by either
telegraph or telecopier confirmed in writing.
8. Termination Upon the Occurrence of Certain Events. This
-------------------------------------------------
Agreement shall be subject to termination in the absolute discretion of the
Initial Purchasers by notice given to the Company prior to delivery of and
payment for all Certificates if prior to such time (i) there has occurred any
material adverse change in the financial markets in the United States or in the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Initial Purchasers, impracticable or inadvisable to market the
Certificates or to enforce contracts for the sale of the Certificates, or (ii)
trading in any securities of Ventas or the Kindred Group has been suspended or
materially limited by the Securities and Exchange Commission (the "Commission"),
----------
the New York Stock Exchange or the Nasdaq National Market, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
with respect to Clearstream or Euroclear systems in Europe, or (iii) a banking
moratorium has been declared by either Federal or New York authorities.
9. Expenses. The out-of-pocket costs and expenses associated
--------
with the transactions contemplated by this Agreement (including without
limitation the costs of preparing, printing and delivering the Preliminary
Offering Memorandum and the Offering Memorandum, the fees of the Rating
Agencies, the fees and expenses of counsel for the Company and the counsel for
each of the Initial Purchasers and the fees and
expenses of accountants) shall be payable by the Company.
10. Representations and Warranties to Survive Delivery. All
--------------------------------------------------
representations and warranties contained in this Agreement shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of either Initial Purchaser or the Company, and shall survive
delivery of and payment for the Certificates or termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to either Initial Purchaser, will be
mailed, delivered or either telegraphed or transmitted by telecopier and
confirmed to it at its address set forth on Schedule II hereto, or at such other
address as may be furnished by such Initial Purchaser to the Company; or, if
sent to the Company; will be mailed, delivered or either telegraphed or
transmitted by telecopier and confirmed to it at c/o Ventas, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: General
Counsel, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address as may be
furnished by the Company to each Initial Purchaser in accordance with this
Section 11.
----------
12. Successors. This Agreement shall inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors to the extent
provided herein.
13. Third-Party Beneficiary. This Agreement and the conditions
-----------------------
and provisions hereof are intended to be and are for the benefit of MLMLI and
its respective successors who shall be a third-party beneficiary of this
Agreement.
14. Miscellaneous. This Agreement will be governed by and
-------------
construed in accordance with the substantive laws of the State of New York,
without regard to conflicts of law principles. This Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed to be
an original and all of which shall together constitute but one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Company and the Initial Purchasers in accordance with its terms.
Very truly yours,
VENTAS SPECIALTY I, LLC
By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
VENTAS, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
Accepted at New York, New York, as of
the date first above written:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. Friend
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
