, dated as of May 17, 2011 (this “Agreement”
), between NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland
corporation (with its successors, the “Borrower”
), and VENTAS REALTY,
LIMITED PARTNERSHIP, a Delaware
limited partnership (with its successors, the “Lender”
1. Certain Definitions. As used herein, the following terms have the following meanings:
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Capital Lease” means at any time any lease of Property which, in accordance with
generally accepted accounting principles in the United States of America, would at such time
be required to be capitalized on a balance sheet of the lessee.
“Capital Lease Obligation” means at any time the amount of the liability in respect of
a Capital Lease which, in accordance with generally accepted accounting principles in the
United States of America, would at such time be required to be capitalized on a balance
sheet of the lessee.
“Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act
and the rules of the Commission thereunder as in effect on the date hereof) other than a
Permitted Acquiror, of Equity Interests representing more than 40% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of the Borrower; (b)
a majority of the members of the board of directors of the Borrower do not constitute
Continuing Directors; (c) the acquisition of direct or indirect Control of the Borrower by
any Person or group other than a Permitted Acquiror; or (d) the Borrower completes a share
exchange, consolidation, merger, sale of all or substantially all of its assets or similar
transaction, in each case, other than a share exchange, consolidation or merger in which the
Permitted Acquiror or the holders of the Borrower’s Equity Interests entitled to vote in the
election of the board of directors of the Borrower generally immediately prior to the share
exchange, consolidation or merger have, directly or indirectly, at least 60% of the total
voting power in the aggregate of all classes of Equity Interests of the Borrower or, if such
entity is not the Borrower, the continuing or surviving entity entitled to vote in the
election of the board of directors of such Person generally immediately after the share
exchange, consolidation or merger.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act.
“Continuing Director” means (a) any member of the board of directors of the Borrower
who was a director (or comparable manager) of the Borrower on the date hereof, and (b) any
individual who becomes a member of the board of directors of the Borrower after the date
hereof if such individual was appointed or nominated for election to the board of directors
of the Borrower by a majority of the Continuing Directors, but excluding any such individual
originally proposed for election in opposition to the board of directors in office at the
date hereof in an actual or threatened election contest relating to the election of the
directors (or comparable managers) of the Borrower and whose initial assumption of office
resulted from such contest or the settlement thereof.
“Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.
“Default” means a condition that, after notice or lapse of time or both, would
constitute an Event of Default.
“Discount Amount” means, with respect to any prepayment of the Loan, an amount equal to
the difference between (a) the amount of interest actually accrued on the portion of the
Loan being repaid from the date of this Agreement through the date of such prepayment
(exclusive of any interest due by virtue of Section 4(b)) and (b) the amount of interest
that would have accrued on such portion of the Loan during such period of time if the
interest rate referred to in Section 4(a) had been 2.50%.
“EBITDA” means, for any period, with respect to the Borrower and its Subsidiaries on a
consolidated basis, determined in accordance with generally accepted accounting principles
in the United States of America, the sum of net income (or net loss) for such period plus,
the sum of all amounts treated as expenses for: (a) interest, (b) depreciation, (c)
amortization, (d) all accrued taxes on or measured by income to the extent included in the
determination of such net income (or net loss) and (e) any noncash charge resulting from a
change in accounting principles; provided, however, that net income (or net loss) shall be
computed without giving effect to extraordinary losses or gains and without taking into
account any provision for gains, losses or impairments on properties.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Funded Indebtedness”, when used with respect to any Person, means as of any date of
determination thereof, (i) its Indebtedness, determined in accordance with generally
accepted accounting principles in the United States of America, which by its terms matures
more than one year after the date of calculation, and any such Indebtedness maturing within
one year from such date which is renewable or extendable at the option of the obligor to a
date more than one year from such date, and (ii) the current portion of all such
“Governmental Authority” means any federal, state, municipal, national or other
government, governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity, officer or examiner
exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of
the United States, the United States, or a foreign entity or government.
“Indebtedness”, when used with respect to any Person means its (i) indebtedness,
secured or unsecured, for borrowed money; (ii) liabilities secured by any Lien existing on
Property owned by such Person; (iii) Capital Lease Obligations, and the present value of all
payments due under any arrangement for retention of title (discounted at a rate per annum
equal to 5.00% and compounded semi-annually) if such arrangement is in substance an
installment purchase or an arrangement for the retention of title for security purposes; and
(iv) guarantees of obligations of the character specified in the foregoing clauses (i), (ii)
and (iii) to the full extent of the liability of the guarantor (discounted to the present
value, as provided in the foregoing clause (iii), in the case of guarantees of title
“Interest Coverage Ratio” as of any date means the ratio of (a) EBITDA to (b) Interest
Expense; all of the foregoing calculated by reference to the immediately preceding four
fiscal quarters of the Borrower most recently ended prior to such date of determination.
“Interest Expense” means, for any period, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the sum of all interest in respect of Indebtedness of
the Borrower accrued during such period.
“Lien” means any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on the common
law, statute or contract, and including but not limited to the security interest lien
arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. The term “Lien” shall include reservations,
exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and all other title exceptions and encumbrances affecting Property, but will not
apply to (1) any liens securing the performance of any contract or
undertaking of the Borrower not directly or indirectly in connection with the borrowing
of money, obtaining of advances or credit or the securing of debts, if made and continuing
in the ordinary course of business, (2) any lien in favor of the United States or any state
thereof or the District of Columbia, or any agency, department or other instrumentality
thereof, to secure progress, advance, or other payments pursuant to any contract or
provision of any statute, (3) mechanics’, materialmen’s, carriers’, or other like liens
arising in the ordinary course of business (including construction of facilities) in respect
of obligations which are not due or which are being contested in good faith, (4) any lien
arising by reason of deposits with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or governmental regulation, which
is required by law or governmental regulation as a condition to the transaction of any
business, or the exercise of any privilege, franchise or license, (5) any liens for taxes,
assessments or governmental charges or levies not yet delinquent, or liens for taxes,
assessments or governmental charges or levies already delinquent but the validity of which
is being contested in good faith, (6) liens (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested in good faith and in
the case of judgment liens, execution thereof is stayed, and (7) any extension, renewal or
replacement (or successive extensions, renewals or replacements), as a whole or in part, of
any lien referred to in the foregoing clauses (1) to (6) inclusive; provided, however, that
the amount of any and all obligations and indebtedness secured thereby shall not exceed the
amount thereof so secured immediately prior to the time of such extension, renewal or
replacement and that such extension, renewal or replacement shall be limited to all or a
part of the Property which secured the charge or lien so extended, renewed or replaced (plus
improvements on such Property). For all purposes of this Agreement, the Borrower shall be
deemed to be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement, Capital Lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for security purposes.
“Loan” means a loan with a principal amount of $600,000,000.00 made pursuant to Section
“Mandatory Prepayment Date” means October 31, 2012.
“Maturity Date” means the tenth anniversary hereof, or, if such day is not a Business
Day, the next succeeding Business Day.
means the Agreement and Plan of Merger, dated as of February 27,
2011, by and among Ventas, Needles Acquisition LLC, a Delaware
limited liability company,
and the Borrower.
“Permitted Acquiror” means Ventas or any wholly owned Subsidiary of Ventas.
“Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof.
“Property” means any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible.
“Solvent” means that, with respect to any Person, (a) the sum of such Person’s debt
(including contingent liabilities) does not exceed the present fair saleable value of such
Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to
its business as conducted on the date hereof or proposed to be conducted after the date
hereof; and (c) such Person has not incurred and does not intend to incur, debts beyond its
ability to pay such debts as they become due (whether at maturity or otherwise).
“Subsidiary” or “Subsidiaries” means a corporation, partnership, limited liability
company or trust more than 50% of the outstanding Voting Stock of which is owned, directly
or indirectly, by the Borrower or by one or more other Subsidiaries, or by the Borrower and
one or more other Subsidiaries.
“Total Assets” means, on any date, the sum of (i) Undepreciated Real Estate Assets and
(ii) all other assets of the Borrower and its Subsidiaries determined in accordance with
generally accepted accounting principles in the United States of America (but excluding
“Total Unencumbered Assets” means, on any date, the sum of (i) the value of those
Undepreciated Real Estate Assets that are not subject to any Lien which secures Indebtedness
for borrowed money of any of the Borrower and its Subsidiaries and (ii) the value of all
other assets of the Borrower and its Subsidiaries not subject to any Lien securing
Indebtedness for borrowed money of any of the Borrower and its Subsidiaries determined in
accordance with generally accepted accounting principles in the United States of America
(but excluding intangibles) after eliminating intercompany accounts and transactions.
“Undepreciated Real Estate Assets” means, on any date, the cost (original cost plus
capital improvements) of any real estate assets of the Borrower and its Subsidiaries, before
depreciation and amortization, determined on a consolidated basis in accordance with
generally accepted accounting principles in the United States of America.
“Unsecured Debt” means Funded Indebtedness less Indebtedness secured by Liens on the
Property or assets of the Borrower and its Subsidiaries.
means Ventas, Inc., a Delaware
“Voting Stock” means stock or other interests evidencing ownership in a corporation,
partnership, limited liability company or trust which ordinarily has voting power for the
election of directors, or other persons performing equivalent functions, whether at all
times or only so long as no senior class of stock has such voting power by reason of any
2. Loan. The Lender hereby agrees to make the Loan to the Borrower on the first Business Day
immediately following the date hereof.
3. Repayment of Loan. The Borrower shall pay to the Lender the outstanding principal amount of
the Loan on the Maturity Date, together with all accrued and unpaid interest on the Loan.
4. Interest Rate. (a) The outstanding principal amounts of the Loan shall bear interest at
the rate of 5.00% per annum from the date of this Agreement, or from the immediately preceding
Interest Payment Date to which interest has been paid. The Borrower shall pay interest on the Loan
to the Lender semi-annually, in arrears, on the date that is two Business Days prior to June 1 of
each year and the date that is two Business Days prior to December 1 of each year (each, an
“Interest Payment Date”) commencing the date that is two Business Days prior to December 1, 2011.
Accrued interest will also be payable on the date of maturity or any earlier date of repayment of
the Loan. Interest on the Loan will be computed on the basis of a 360-day year of twelve 30-day
(b) Notwithstanding the foregoing, to the extent permitted by applicable law, in the
case of any overdue amounts of principal or interest, the Borrower shall pay interest on
such overdue amounts, on demand by the Lender, at the rate of 7.00% per annum.
5. Use of Proceeds. The proceeds of the Loan will be used by the Borrower to repay
outstanding amounts under its existing revolving credit facility, to acquire properties and for
other corporate purposes.
6. Voluntary Prepayments. The Borrower will have the right at any time to prepay the Loan in
whole or in part without premium or penalty at any time and from time to time, provided that any
such prepayment shall be accompanied by all accrued but unpaid interest on the principal amount
being prepaid. Upon any prepayment under this Section 6, unless an Event of Default has occurred
and is continuing, the Borrower shall receive a credit equal to the Discount Amount with respect to
such prepayment, and such credit shall be applied to such prepayment; provided that the Borrower
shall only receive such credit if such prepayment occurs after the Outside Date (as defined in the
7. Mandatory Prepayments. The Borrower shall prepay the Loan in whole, including accrued and
unpaid interest, on the earlier of (a) the occurrence of a Change of Control or (b) the
Mandatory Prepayment Date if the Closing Date (as defined in the Merger Agreement) has not
occurred on or before the Outside Date (as defined in the Merger Agreement). Upon any prepayment
under clause (a) or (b) of the immediately preceding sentence, unless an Event of Default has
occurred and is continuing, the Borrower shall receive a credit equal to the Discount Amount with
respect to such prepayment, and such credit shall be applied to such prepayment.
8. General Provisions Regarding Payments. The Borrower will pay all amounts due hereunder
free and clear of and without reduction for any taxes, levies, imposts, deductions, withholding or
charges and without set-off or counterclaim, in U.S. dollars available the same day in Chicago,
Illinois. Payments received that are insufficient to pay amounts then due shall be applied
first to indemnification obligations to the Lender, second to interest then due and
payable and third to principal repayment amounts then due.
9. Representation and Warranties. In order to induce the Lender to make the Loan, the
Borrower represents and warrants to the Lender that:
(a) The Borrower is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite power and authority to
carry on its business as now conducted.
(b) The execution, delivery and performance by the Borrower of this Agreement are
within the Borrower’s corporate powers and have been duly authorized by all necessary
(c) The execution, delivery and performance by the Borrower of this Agreement do not
and will not (i) violate (x) any material law or governmental rule or regulation applicable
to the Borrower, (y) the certificate of incorporation or by-laws of the Borrower, or (z) any
order, judgment or decree of any court or other agency of government binding on the
Borrower; (ii) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any material contractual obligation of the Borrower; (iii)
result in or require the creation or imposition of any Lien upon any of the properties or
assets of the Borrower; or (iv) require any approval of stockholders, members or partners or
any approval or consent of any Person under any contractual obligation of the Borrower, or
any registration with, consent or approval of, or notice to, or other action to, with or by,
any Governmental Authority except for such approvals or consents which have been obtained on
or before the date hereof.
(d) This Agreement has been duly executed and delivered by the Borrower and constitutes
a legal, valid and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(e) On the date hereof the Borrower is Solvent.
(f) No Default or Event of Default has occurred and is continuing.
10. Covenants. So long as any amount is outstanding under this Agreement, unless compliance
shall have been waived in writing, in advance, by the Lender, the Borrower agrees that:
(a) Merger, Consolidation, etc. Only on Certain Terms. The Borrower shall not
consolidate with or merge into any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and the Borrower shall not permit any
Person to consolidate with or merge into the Borrower or convey, transfer or lease its
properties and assets substantially as an entirety to the Borrower, unless: (1) in case the
Borrower shall consolidate with or merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Borrower is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Borrower
substantially as an entirety shall be a corporation, limited liability company, partnership
or trust, shall be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly assume, in
writing, executed and delivered to the Lender, in form satisfactory to the Lender, the due
and punctual payment of the principal of (and premium, if any) and interest on the Loan and
the performance of every covenant and other obligation under this Agreement on the part of
the Borrower to be performed or observed, and (2) immediately after giving effect to such
transaction no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing. Upon any
consolidation by the Borrower with or merger by the Borrower into any other Person or any
conveyance, transfer or lease of the properties and assets of the Borrower substantially as
an entirety in accordance with this Section 10(a), the successor Person formed by such
consolidation or into which the Borrower is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Borrower under this Agreement with the same effect as if such successor Person
had been named as the Borrower herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this Agreement.
(b) Corporate Existence. Subject to Section 10(a), the Borrower will do or
cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the Borrower
and its Subsidiaries; provided, however, that the Borrower shall not be required to preserve
any such right or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower and/or any Subsidiary and that the
loss thereof is not disadvantageous in any material respects to the Lender.
(c) Payment of Taxes and Other Claims. The Borrower will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Borrower or any Subsidiary
or upon the income, profits or property of the Borrower or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Borrower or any Subsidiary; provided, however, that the Borrower
shall not be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
(d) Statement by Officers as to Default.
(i) The Borrower shall deliver to the Lender, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an officers’ certificate) signed by the principal executive officer,
the principal financial officer or the principal accounting officer of the
Borrower, stating that (x) a review of the activities of the Borrower during such
year and of performance under this Agreement has been made under his or her
supervision, and (y) to the best of his or her knowledge, based on such review, (a)
the Borrower has complied with all the conditions and covenants imposed on it under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default known
to him or her and the nature and status thereof, and (b) no event has occurred and
is continuing which is, or after notice or lapse of time or both would become, an
Event of Default, or, if such an event has occurred and is continuing, specifying
each such event known to him or her and the nature and status thereof.
(ii) The Borrower shall deliver to the Lender, within five business days after
the occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default.
(e) Limitation on Liens. The Borrower will not pledge or otherwise subject to
any Lien, any of its Property or assets; provided, however, that such covenant will not
apply to Liens securing obligations which do not in the aggregate at any one time
outstanding exceed 40% of the sum of (i) the Total Assets of the Borrower and its
consolidated Subsidiaries as of the end of the calendar year or quarter covered in the
Borrower’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not permitted under the
Exchange Act, with the Lender) prior to the incurrence of such additional Liens and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and the amount of
any securities offering proceeds received (to the extent that such proceeds were not used to
acquire real estate assets or mortgages receivable or used to reduce
Indebtedness), by the Borrower or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of such
(f) Limitation on Total Unencumbered Assets. The Borrower will at all times
maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of the Borrower and its Subsidiaries on a
(g) Limitation on Indebtedness. The Borrower will not create, assume, incur or
otherwise become liable in respect of, any Indebtedness if the aggregate outstanding
principal amount of Indebtedness of the Borrower and its consolidated Subsidiaries is, at
the time of such creation, assumption or incurrence and after giving effect thereto and to
any concurrent transactions, greater than 60% of the sum of (i) the Total Assets of the
Borrower and its consolidated subsidiaries as of the end of the calendar year or quarter
covered in the Borrower’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Lender) prior to the incurrence of such
additional Indebtedness and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Indebtedness), by the Borrower or any Subsidiary since the end
of such calendar year or quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(h) Interest Coverage Ratio. The Borrower will not incur any Indebtedness if,
on a consolidated basis, the Interest Coverage Ratio on the date on which such additional
Indebtedness is to be incurred, on a pro forma basis, after giving effect to the incurrence
of such Indebtedness and to the application of the proceeds thereof, would have been less
than 1.50 to 1.00.
11. Events of Default. If any of the following events (each, an “Event of Default”) shall
occur and be continuing:
(a) default in the payment of any interest on the Loan when such interest becomes due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of principal of the Loan when and as the same shall become
due and payable; or
(c) default in the performance, or breach, of any covenant or warranty of the Borrower
under this Agreement (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Borrower by the Lender a written notice
specifying such default or breach and requiring it to be remedied and stating that such
notice is a “NOTICE OF DEFAULT” hereunder; or
(d) the entry by a court having jurisdiction in the premises of (a) a decree or order
for relief in respect of the Borrower in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
(b) a decree or order adjudging the Borrower as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Borrower under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Borrower or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90 consecutive days;
(e) the commencement by the Borrower of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Borrower in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or the consent
by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Borrower or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Borrower in
furtherance of any such action; or
(f) a Change of Control shall occur;
then, in the case of any Event of Default specified above, the Lender may, by written notice to the
Borrower, declare the Loan to be forthwith due and payable, together with accrued interest,
whereupon the same shall become forthwith due and payable, without demand, protest, presentment,
notice of dishonor or any other notice or demand whatsoever, all of which are hereby waived by the
Borrower. Notwithstanding anything to the contrary contained herein, if any Event of Default
described under Section 11(f) above occurs prior to the Mandatory Prepayment Date, the Borrower
shall immediately pay to the Lender an amount equal to any and all Discount Amounts credited to the
Borrower under this Agreement, which provisions shall survive any prior payment of the Loan or
amounts outstanding hereunder.
12. Notices. Any notice to be given under this Agreement shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier to the address or telecopier number specified on the signature page hereto. Notices
sent by hand or overnight courier service or mailed by certified or registered mail shall be deemed
to have been duly given when received by the recipient. Notices sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient).
13. No Waiver. No delay on the part of the Lender in exercising any of its powers or rights,
and no partial or single exercise, shall constitute a waiver thereof.
14. Amendments and Waivers. Any provision of this Agreement may be amended or waived, but
only if such amendment or waiver is in writing and is signed by the Lender and the Borrower.
15. Successors and Assigns. This Agreement shall be binding upon the Borrower and its
successors and assigns, for the benefit of the Lender and its successors and assigns, except that
the Borrower may not assign or otherwise transfer its rights or obligations under this Agreement
without the prior written consent of the Lender. The Lender may transfer all or a portion of the
Loan to any wholly owned Subsidiary of the Lender.
16. Indemnity. (a) The Borrower agrees to indemnify, defend and hold harmless the Lender,
and any of its participants, parent corporations, subsidiary corporations, affiliated corporations,
successor corporations, and all present and future officers, directors, employees and agents of the
foregoing (the “Indemnitees”), from and against (i) any and all transfer taxes, documentary taxes,
assessments or charges made by any governmental authority by reason of the execution and delivery
of this Agreement or the making of the Loan, and (ii) any and all liabilities, losses, damages,
penalties, judgments, suits, claims, costs and expenses of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel) in connection
with any investigative, administrative or judicial proceedings, whether or not such Indemnitee
shall be designated a party thereto, which may be imposed on, incurred by or asserted against such
Indemnitee, in any manner relating to or arising out of or in connection with the making of the
Loan and this Agreement or the use or intended use of the proceeds of the Loan (the “Indemnified
Liabilities”); provided, however, that the Borrower shall not have any indemnification obligations
with respect to any liabilities, losses, damages, penalties, judgments, suits, claims, costs or
expenses of the Lender which arise out of the gross negligence or willful misconduct of the Lender.
If any investigative, judicial or administrative proceeding arising from any of the foregoing is
brought against any Indemnitee, upon request of such Indemnitee, the Borrower, or counsel
designated by the Borrower and reasonably satisfactory to the Indemnitee, will resist and defend
such action, suit or proceeding to the extent and in the manner directed by the Indemnitee, at the
Borrower’s sole cost and expense. Each Indemnitee will use its reasonable best efforts to
cooperate in the defense of any such action, suit or proceeding. If
the foregoing undertaking to indemnify, defend and hold harmless may be held to be
unenforceable because it violates any law or public policy, the Borrower shall nevertheless make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. The obligations of the Borrower under this Section 16
shall survive the termination of this Agreement and the discharge of the Borrower’s other
obligations under this Agreement.
(b) To the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against the Lender and its affiliates, directors, employees,
attorneys, agents or sub-agents, on any theory of liability, including, without limitation,
for special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, as a result of or related to, this Agreement or
any agreement or instrument contemplated hereby or referred to herein, the transactions
contemplated hereby, the Loan or the use of the proceeds thereof.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the
law of the State of New York, without regard to conflicts of law principles thereof.
18. Submission to Jurisdiction; Consent to Service of Process. The Borrower and, by its
acceptance of this Agreement, the Lender, each agree as follows:
(a) each such party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District
of New York, and any relevant appellate court, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment, and each such
party hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in New York State court or, to the extent
permitted by law, in such Federal court; provided that nothing in this Agreement shall
affect any right that the Lender or the Borrower may otherwise have to bring any action or
proceeding relating to this Agreement against the other party or its properties in the
courts of any jurisdiction;
(b) each such party hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement in any court referred to in Section 18(a), and each such party also irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of any such suit, action or proceeding in any such court; and
(c) each such party irrevocably consents to service of process in the manner provided
for notices in Section 12. Nothing in this Agreement will affect the right of any party to
serve process in any other manner permitted by law.
19. WAIVER OF JURY TRIAL. THE BORROWER HEREBY WAIVES AND, BY ITS ACCEPTANCE OF THIS
AGREEMENT, THE LENDER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
20. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the other provisions of the Agreement shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
||NATIONWIDE HEALTH PROPERTIES, INC., as Borrower
||/s/ Abdo H. Khoury
||Abdo H. Khoury
||Executive Vice President and
Financial & Portfolio Officer
||Address for notices:
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660
Attention: Douglas M. Pasquale
VENTAS REALTY, LIMITED PARTNERSHIP, as Lender
||VENTAS, INC., its General Partner
||/s/ Richard A. Schweinhart
||Richard A. Schweinhart
||Executive Vice President and
||Address for notices:
Ventas Realty, Limited Partnership
10350 Ormsby Park Place, Suite 300
Louisville, Kentucky 40223
Attention: T. Richard Riney, Esq