Exhibit 4.2





Exhibit 4.2




THIRD SUPPLEMENTAL INDENTURE




by and among




Ventas Realty, Limited Partnership,

Ventas Capital Corporation,

Ventas, Inc., as Guarantor




and




U.S. Bank National Association

as Trustee




$400,000,000

3.125% Senior Notes due 2015



 





Dated as of November 16, 2010




Supplement to Indenture dated as of September 19, 2006 (Senior Debt Securities)



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	CREATION OF THE SECURITIES

	 
	 	 	 	 
	Section 1.01 Designation of the Series; Securities Guarantee
	 	 	2	 
	Section 1.02 Form of Notes
	 	 	2	 
	Section 1.03 No Limit on Amount of Notes
	 	 	2	 
	Section 1.04 Ranking
	 	 	2	 
	Section 1.05 Certificate of Authentication
	 	 	3	 
	Section 1.06 No Sinking Fund
	 	 	3	 
	Section 1.07 No Additional Amounts
	 	 	3	 
	Section 1.08 Definitions
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	REDEMPTION

	 
	 	 	 	 
	Section 2.01 Amendment to Article 3
	 	 	11	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	COVENANTS

	 
	 	 	 	 
	Section 3.01 Amendments to Article 4
	 	 	11	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	SUCCESSORS

	 
	 	 	 	 
	Section 4.01 Amendments to Article 5
	 	 	15	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 5.01 Amendments to Article 6
	 	 	17	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	TRUSTEE

	 
	 	 	 	 
	Section 6.01 Amendments to Article 7
	 	 	19	 






 


 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 7.01 Applicability of Defeasance Provisions
	 	 	19	 
	Section 7.02 Determinations Under Section 8.03
	 	 	19	 
	Section 7.03 Determination Under Section 8.07
	 	 	19	 
	Section 7.04 Amendments to Article 8
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	GUARANTEES

	 
	 	 	 	 
	Section 8.01 Applicability of Guarantee Provisions
	 	 	20	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	MISCELLANEOUS

	Section 9.01 Determination Under Section 13.10
	 	 	20	 
	Section 9.02 Application of Third Supplemental Indenture; Ratification
	 	 	20	 
	Section 9.03 Benefits of Third Supplemental Indenture
	 	 	21	 
	Section 9.04 Effective Date
	 	 	21	 
	Section 9.05 Governing Law
	 	 	21	 
	Section 9.06 Counterparts
	 	 	21	 
	 
	 	 	 	 
	SCHEDULE 1 Real Estate Revenues
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A Form of Note
	 	 	 	 
	EXHIBIT B Form of Notation of Securities Guarantee
	 	 	 	 





 


 









 





THIS THIRD SUPPLEMENTAL INDENTURE, dated as of November 16, 2010 (the “Third Supplemental
Indenture”), is by and among Ventas Realty, Limited Partnership, a Delaware limited partnership
(the “Partnership”), Ventas Capital Corporation, a Delaware corporation (“Ventas
Capital”), Ventas, Inc., a Delaware corporation, and U.S. Bank National Association, as trustee
(the “Trustee”), having a Corporate Trust Office at 425 Walnut ML CN WN 06 CT, Cincinnati,
Ohio 45202, as Trustee under the Indenture (defined below).



WHEREAS, Ventas, Inc., the Partnership, Ventas Capital, the Guarantors named therein and the
Trustee are parties to that certain indenture dated as of September 19, 2006 (the “Base
Indenture” and, as amended and supplemented from time to time, the “Indenture”),
providing for the issuance by Ventas, Inc. or by the Partnership and Ventas Capital together from
time to time of their respective senior debt securities (the “Securities”);



WHEREAS, Sections 2.02 and 9.01 of the Base Indenture provide, among other things, that,
without the consent of the Holders of the Securities, one or more indentures supplemental to the
Base Indenture may be entered into to establish the form or terms of Securities of any series or to
change or eliminate any of the provisions of the Base Indenture; provided that any such change or
elimination shall become effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the benefit of such
provisions;



WHEREAS, the Partnership and Ventas Capital, acting in their capacity as issuers under the
Base Indenture (together with their respective successors, the “Issuers”), desire to issue
a series of their Securities under the Base Indenture, and have duly authorized the creation and
issuance of such Securities and the execution and delivery of this Third Supplemental Indenture to
modify the Base Indenture and to provide certain additional provisions in respect of such
Securities as hereinafter described;



WHEREAS, the Issuers desire to issue such Securities with the benefit of a guarantee provided
by Ventas, Inc. on the terms set forth in the Base Indenture, as supplemented by this Third
Supplemental Indenture;



WHEREAS, the Issuers, Ventas, Inc. and the Trustee deem it advisable to enter into this Third
Supplemental Indenture for the purposes of establishing the terms of such Securities and guarantee
and providing for the rights, obligations and duties of the Trustee with respect to such
Securities;



WHEREAS, concurrently with the execution hereof, the Issuers have delivered to the Trustee an
Officers’ Certificate and have caused their counsel to deliver to the Trustee an Opinion of Counsel
or a reliance letter upon an Opinion of Counsel satisfying the requirements of Section 2.03 of the
Base Indenture; and



WHEREAS, all conditions and requirements of the Base Indenture necessary to make this Third
Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been
performed and fulfilled by the parties hereto, and the execution and delivery hereof have been in
all respects duly authorized by the parties hereto.


 


 









 





NOW, THEREFORE, for and in consideration of the premises and agreements herein contained, it
is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of such
Securities, as follows:



ARTICLE I




CREATION OF THE SECURITIES





Section 1.01 Designation of the Series; Securities Guarantee.



(a) The changes, modifications and supplements to the Base Indenture effected by this Third
Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes
(as defined below), which shall not apply to any other Securities that have been or may be issued
under the Base Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements. Pursuant to the terms hereof
and Sections 2.01 and 2.02 of the Base Indenture, the Issuers hereby create a series of Securities
designated as the “3.125% Senior Notes due 2015” (the “Notes”), which Notes shall be deemed
“Securities” for all purposes under the Base Indenture. Except as otherwise provided in
the Base Indenture, the Notes shall form their own series for voting purposes, and shall not be
part of the same class or series as any other Securities issued by the Issuers or by Ventas, Inc.



(b) Each of the Notes will be guaranteed by the Guarantor in accordance with Article 10 of the
Base Indenture and Article VII of this Third Supplemental Indenture.



Section 1.02 Form of Notes. The Notes will be issued in definitive form and the
definitive form of the Notes shall be one or more Global Securities substantially in the form set
forth in Exhibit A attached hereto, which is incorporated herein and made a part hereof.
The Notes shall bear interest, be payable and have such other terms as are stated in the form of
definitive Note or in the Base Indenture, as supplemented by this Third Supplemental Indenture.
The stated maturity of the principal of the Notes shall be November 30, 2015.



Section 1.03 No Limit on Amount of Notes. The Trustee shall authenticate and deliver
on November 16, 2010, Notes for original issue in an aggregate principal amount of up to
$400,000,000. Notwithstanding the foregoing, the aggregate principal amount of the Notes shall be
unlimited; provided, that the terms of all Notes issued under this Third Supplemental Indenture
(other than the date of issuance) shall be the same. The Issuers may, upon the execution and
delivery of this Third Supplemental Indenture or from time to time thereafter, execute and deliver
the Notes to the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes upon an Authentication Order and delivery of an Officers’ Certificate and
Opinion of Counsel as contemplated by Section 2.03 of the Base Indenture, without further action by
the Issuers.



Section 1.04 Ranking. The Notes will be the Issuers’ unsecured and unsubordinated
obligations and rank equal in right of payment with all of the Issuers’ existing and future
unsecured and unsubordinated indebtedness.


 


2









 





Section 1.05 Certificate of Authentication. The Trustee’s certificate of
authentication to be included on the Notes shall be substantially as provided in the form of Note
attached hereto as Exhibit A.



Section 1.06 No Sinking Fund. No sinking fund will be provided with respect to the
Notes (notwithstanding any provisions of the Base Indenture with respect to sinking fund
obligations).



Section 1.07 No Additional Amounts. No Additional Amounts will be payable with
respect to the Notes (notwithstanding any provisions of the Base Indenture with respect to
Additional Amount obligations).




Section 1.08 Definitions.



(a) Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings assigned thereto in the Base Indenture.



(b) Solely for purposes of this Third Supplemental Indenture and the Notes, the following
definitions in Section 1.01 of the Base Indenture are hereby amended in their entirety to read as
follows:



“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, “control,” as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



“Business Day” means any day other than a Saturday or Sunday or a day on which banking
institutions in The City of New York are required or authorized to close.



“Debt” means, as of any date (without duplication), (1) all indebtedness and
liabilities for borrowed money, secured or unsecured, of Ventas, Inc. and its Subsidiaries,
including mortgages and other notes payable (including the Notes to the extent outstanding from
time to time), but excluding any indebtedness, including mortgages and other notes payable, which
is secured by cash, cash equivalents or marketable securities or defeased (it being understood that
cash collateral shall be deemed to include cash deposited with a trustee with respect to third
party indebtedness) and (2) all Contingent Liabilities of Ventas, Inc. and Subsidiaries, excluding
in each of clauses (1) and (2) Intercompany Debt and all liabilities associated with customary
exceptions to non-recourse indebtedness, such as for fraud, misapplication of funds, environmental
indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions.



It is understood that Debt shall not include any redeemable equity interest in Ventas, Inc.


 


3









 





“Default” means, with respect to the Indenture and the Notes, any event that is, or
with the passage of time or giving of notice would be, an Event of Default.



“GAAP” means generally accepted accounting principles in the United States,
consistently applied, as in effect from time to time.



“Incur” means, with respect to any Debt or other obligation of any Person, to create,
assume, guarantee or otherwise become liable in respect of such Debt or other obligation, and
“Incurrence” and “Incurred” have the meanings correlative to the foregoing.




“Interest Payment Date” has the meaning set forth in the Indenture and the Notes.



“Lien” means (without duplication) any lien, mortgage, trust deed, deed of trust, deed
to secure debt, pledge, security interest, assignment for collateral purposes, deposit arrangement,
or other security agreement, excluding any right of setoff but including, without limitation, any
conditional sale or other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and any other like agreement granting or conveying a
security interest; provided, that for purposes hereof, “Lien” shall not include any mortgage that
has been defeased by Ventas, Inc. or any of its Subsidiaries in accordance with the provisions
thereof through the deposit of cash, cash equivalents or marketable securities (it being understood
that cash collateral shall be deemed to include cash deposited with a trustee with respect to third
party indebtedness).



“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



“Real Estate Assets” means, as of any date, the real estate assets of such Person and
its Subsidiaries on such date, on a consolidated basis determined in accordance with GAAP.



“Significant Subsidiary” means each Subsidiary that is a “significant subsidiary”, if
any, of Ventas, Inc., as such term is defined in Regulation S-X under the Securities Act.



(c) Solely for purposes of this Third Supplemental Indenture and the Notes, the following
terms shall have the indicated meanings:



“Consolidated EBITDA” means, for any period of time, the net income (loss) of Ventas,
Inc. and its Subsidiaries, determined on a consolidated basis in accordance with GAAP for such
period, before deductions for (without duplication):




(1) Interest Expense;




(2) taxes;



(3) depreciation, amortization, and all other non-cash items, as determined reasonably and in
good faith by Ventas, Inc., deducted in arriving at net income (loss);



(4) extraordinary items;


 


4









 





(5) non-recurring items or other unusual items, as determined reasonably and in good faith by
Ventas, Inc. (including, without limitation, all prepayment penalties and all costs or fees
incurred in connection with any debt financing or amendment thereto, acquisition, disposition,
recapitalization or similar transaction (regardless of whether such transaction is completed));




(6) noncontrolling interests;



(7) income or expense attributable to transactions involving derivative instruments that do
not qualify for hedge accounting in accordance with GAAP; and



(8) gains or losses on dispositions of depreciable real estate investments, property valuation
losses and impairment charges.



For purposes of calculating Consolidated EBITDA, all amounts shall be as determined reasonably
and in good faith by Ventas, Inc., and in accordance with GAAP except to the extent that GAAP is
not applicable with respect to the determination of all non-cash and non-recurring items.



“Consolidated Financial Statements” means, with respect to any Person, collectively,
the consolidated financial statements and notes to those financial statements, of that Person and
its subsidiaries prepared in accordance with GAAP.



“Contingent Liabilities of Ventas, Inc. and Subsidiaries” means, as of any date, those
liabilities of Ventas, Inc. and its Subsidiaries consisting of (without duplication) indebtedness
for borrowed money, as determined in accordance with GAAP, that are or would be stated and
quantified as contingent liabilities in the notes to the Consolidated Financial Statements of
Ventas, Inc. as of the date of determination.



“Guarantor” means Ventas, Inc. and its successors and assigns; provided, however, that
any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when
its Guarantee of the Notes is released in accordance with the terms of the Indenture.



“Intercompany Debt” means, as of any date, Debt to which the only parties are Ventas,
Inc. and any of its Subsidiaries as of such date; provided, however, that with respect to any such
Debt of which an Issuer or the Guarantor is the borrower, such debt is subordinate in right of
payment to the Notes.



“Interest Expense” means, for any period of time, the aggregate amount of interest
recorded in accordance with GAAP for such period by Ventas, Inc. and its Subsidiaries, but
excluding (i) interest reserves funded from the proceeds of any loan, (ii) prepayment penalties,
(iii) amortization of deferred financing costs, and (iv) non-cash swap ineffectiveness charges, in
all cases as reflected in the applicable Consolidated Financial Statements.



“Issuers” has the meaning stated in the third recital of the Third Supplemental
Indenture.


 


5









 






“Issue Date” means November 16, 2010.



“Latest Completed Quarter” means, as of any date, the then most recently ended fiscal
quarter of Ventas, Inc. for which Consolidated Financial Statements of Ventas, Inc. have been
completed, it being understood that at any time when Ventas, Inc. is subject to the informational
requirements of the Exchange Act, and in accordance therewith files annual and quarterly reports
with the Commission, the term “Latest Completed Quarter” shall be deemed to refer to the fiscal
quarter covered by Ventas, Inc.’s most recently filed Quarterly Report on Form 10-Q, or, in the
case of the last fiscal quarter of the year, Ventas, Inc.’s Annual Report on Form 10-K.



“Make-Whole Amount” means, in connection with any optional redemption of the Notes,
the excess, if any, of:




(1) the aggregate present value as of the date of such redemption of each dollar of
principal being redeemed or paid and the amount of interest (exclusive of interest accrued
to the date of redemption or accelerated payment) that would have been payable in respect of
each such dollar if such redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date a notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or payment had not been made, over




(2) the aggregate principal amount of the Notes being redeemed or paid.




“Notes” has the meaning stated in Section 1.01 hereof.



“Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any Debt.



“Property EBITDA” means for any property owned by Ventas, Inc. or any of its
Subsidiaries as of the date of determination, for any period of time, the net income (loss) derived
from such property for such period, before deductions for (without duplication):




(1) Interest Expense;




(2) taxes;



(3) depreciation, amortization, and all other non-cash items, as determined reasonably and in
good faith by Ventas, Inc., deducted in arriving at net income (loss);



(4) general and administrative expenses that are not allocated by management to a property
segment, as reflected in Ventas, Inc.’s Consolidated Financial Statements available for the four
(4) consecutive fiscal quarters ending with the Latest Completed Quarter;


 


6









 






(5) extraordinary items;



(6) non-recurring items or other unusual items, as determined reasonably and in good faith by
Ventas, Inc. (including, without limitation, all prepayment penalties and all costs or fees
incurred in connection with any debt financing or amendment thereto, acquisition, disposition,
recapitalization or similar transaction (regardless of whether such transaction is completed));




(7) noncontrolling interests;



(8) income or expense attributable to transactions involving derivative instruments that do
not qualify for hedge accounting in accordance with GAAP; and




(9) property valuation losses and impairment charges;




in each case attributable to such property.



For purposes of calculating Property EBITDA, all amounts shall be determined reasonably and in
good faith by Ventas, Inc., and in accordance with GAAP except to the extent that GAAP is not
applicable with respect to the determination of all non-cash and non-recurring items.




Property EBITDA shall be adjusted (without duplication) to give pro forma effect:




(x) in the case of any assets having been placed-in-service or removed from service
since the first day of the period to the date of determination, to include or exclude, as
the case may be, any Property EBITDA earned or eliminated as a result of the placement of
such assets in service or removal of such assets from service as if the placement of such
assets in service or removal of such assets from service occurred as of the first day of the
period; and




(y) in the case of any acquisition or disposition of any asset or group of assets since
the first day of the period to the date of determination, including, without limitation, by
merger, or stock or asset purchase or sale, to include or exclude, as the case may be, any
Property EBITDA earned or eliminated as a result of the acquisition or disposition of those
assets as if the acquisition or disposition occurred as of the first day of the period.



“Reinvestment Rate” means 0.40% plus the arithmetic mean of the yields under the
respective heading Week Ending published in the most recent Statistical Release under Treasury
Constant Maturities for the maturity (rounded to the nearest month) corresponding to the remaining
life to maturity, as of the date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used.


 


7









 





“Secured Debt” means, as of any date, that portion of the aggregate principal amount
of all outstanding Debt of Ventas, Inc. and its Subsidiaries as of that date that is secured by a
Lien on properties or other assets of Ventas, Inc. or any of its Subsidiaries.



“Stabilized Development Asset” means, as of any date, a new construction or
development Real Estate Asset at such date that, following the first four (4) consecutive fiscal
quarters occurring after substantial completion of construction or development, either (i) an
additional six (6) consecutive fiscal quarters have occurred or (ii) such Real Estate Asset is at
least 90% leased, whichever shall first occur.



“Statistical Release” means that statistical release designated H. 15(519) or any
successor publication that is published weekly by the Federal Reserve System and that establishes
annual yields on actively traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index the Issuers designate.



“Subsidiary” means, with respect to any Person, a corporation, partnership
association, joint venture, trust, limited liability company or other business entity which is
required to be consolidated with such Person in accordance with GAAP.




“Third Supplemental Indenture” has the meaning stated in the preamble.



“Total Assets” means, as of any date, in each case as determined reasonably and in
good faith by Ventas, Inc., the sum of (without duplication):




(1) with respect to Real Estate Assets that were owned by Ventas, Inc. and its
Subsidiaries as of April 17, 2002 and that continue to be owned as of the date of
determination, the annualized rental revenues specified for such Real Estate Assets on
Schedule 1 attached to this Third Supplemental Indenture, divided by 0.0900, plus any
annualized incremental rental revenue generated by such Real Estate Assets as a result of,
arising out of or in connection with annual rent escalations or rent reset rights of Ventas,
Inc. and its Subsidiaries with respect to such Real Estate Assets (whether by agreement or
exercise of such right or otherwise), divided by 0.0900; for the purpose of this clause (1),
“annualized incremental rental revenue” in respect of a Real Estate Asset shall mean the
increase in daily rental revenue generated by such Real Estate Asset as a result of, arising
out of or in connection with such annual rent escalations or rent reset rights over the
daily rental revenue generated by such Real Estate Asset immediately prior to the effective
date of such increase, annualized by multiplying such daily increase by 365;




(2) with respect to all other Real Estate Assets owned by Ventas, Inc. and its
Subsidiaries as of the date of determination (except as set forth in clause (3) below), the
cost (original cost plus capital improvements before depreciation and amortization) thereof,
determined in accordance with GAAP;


 


8









 






(3) with respect to Stabilized Development Assets owned by Ventas, Inc. and its
Subsidiaries as of the date of determination, the aggregate sum of all Property EBITDA for
such Stabilized Development Assets for the four (4) consecutive fiscal quarters ending with
the Latest Completed Quarter divided by (i) 0.0900, in the case of a government reimbursed
property and (ii) 0.0700 in all other cases; provided, however, that if the value of a
particular Stabilized Development Asset calculated pursuant to this clause (3) is less than
the cost (original cost plus capital improvements before depreciation and amortization) of
such Real Estate Asset, as determined in accordance with GAAP, such cost shall be used in
lieu thereof with respect to such Real Estate Asset;




(4) the proceeds of the Debt, or the assets to be acquired in exchange for such
proceeds, as the case may be, incurred since the end of the Latest Completed Quarter;




(5) mortgages and other notes receivable of Ventas, Inc. and its Subsidiaries,
determined in accordance with GAAP;




(6) cash, cash equivalents and marketable securities of Ventas, Inc. and its
Subsidiaries but excluding all cash, cash equivalents and marketable securities securing, or
applied to defease or discharge, in each case as of that date, any indebtedness, including
mortgages and other notes payable (including cash deposited with a trustee with respect to
third party indebtedness), all determined in accordance with GAAP; and




(7) all other assets of Ventas, Inc. and its Subsidiaries (excluding goodwill),
determined in accordance with GAAP.



“Unencumbered Assets” means, as of any date, in each case as determined reasonably and
in good faith by Ventas, Inc., the sum of (without duplication):




(1) with respect to Real Estate Assets that were owned by Ventas, Inc. and its
Subsidiaries as of April 17, 2002 and that continue to be owned as of the date of
determination, but excluding any such Real Estate Assets that are serving as collateral for
Secured Debt, the annualized rental revenues specified for such Real Estate Assets on
Schedule 1 attached to this Third Supplemental Indenture, divided by 0.0900, plus any
annualized incremental rental revenue generated by such Real Estate Assets as a result of,
arising out of or in connection with annual rent escalations or rent reset rights of Ventas,
Inc. and its Subsidiaries with respect to such Real Estate Assets (whether by agreement or
exercise of such right or otherwise), divided by 0.0900; for the purpose of this clause (1),
“annualized incremental rental revenue” in respect of a Real Estate Asset shall mean the
increase in daily rental revenue generated by such Real Estate Asset as a result of, arising
out of or in connection with such annual rent escalations or rent reset rights over the
daily rental revenue generated by such Real Estate Asset immediately prior to the effective
date of such increase, annualized by multiplying such daily increase by 365;


 


9









 






(2) with respect to all other Real Estate Assets owned by Ventas, Inc. and its
Subsidiaries as of the date of determination (except as set forth in clause (3)
below), but excluding any such Real Estate Assets that are serving as collateral for
Secured Debt, the cost (original cost plus capital improvements before depreciation and
amortization) thereof, determined in accordance with GAAP;




(3) with respect to Stabilized Development Assets owned by Ventas, Inc. and its
Subsidiaries as of the date of determination, excluding any such Stabilized Development
Assets that are serving as collateral for Secured Debt, the aggregate sum of all Property
EBITDA for such Stabilized Development Assets for the four (4) consecutive fiscal quarters
ending with the Latest Completed Quarter divided by (i) 0.0900, in the case of a government
reimbursed property and (ii) 0.0700 in all other cases; provided, however, that if the value
of a particular Stabilized Development Asset calculated pursuant to this clause (3) is less
than the cost (original cost plus capital improvements before depreciation and amortization)
of such Real Estate Asset, as determined in accordance with GAAP, such cost shall be used in
lieu thereof with respect to such Real Estate Asset;




(4) the proceeds of the Debt, or the assets to be acquired in exchange for such
proceeds, as the case may be, incurred since the end of the Latest Completed Quarter;




(5) mortgages and other notes receivable of Ventas, Inc. and its Subsidiaries, except
any mortgages or other notes receivable that are serving as collateral for Secured Debt,
determined in accordance with GAAP;




(6) cash, cash equivalents and marketable securities of Ventas, Inc. and its
Subsidiaries but excluding all cash, cash equivalents and marketable securities securing, or
applied to defease or discharge, in each case as of that date, any indebtedness, including
mortgages and other notes payable (including cash deposited with a trustee with respect to
third party indebtedness), all determined in accordance with GAAP; and




(7) all other assets of Ventas, Inc. and its Subsidiaries (excluding goodwill), other
than assets pledged to secure Debt, determined in accordance with GAAP; provided, however,
that Unencumbered Assets shall not include net real estate investments in unconsolidated
joint ventures of Ventas, Inc. and its Subsidiaries.



For the avoidance of doubt, cash held by a “qualified intermediary” in connection with
proposed like-kind exchanges pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended, which may be classified as “restricted” for GAAP purposes shall nonetheless be included in
clause (6) above, so long as Ventas, Inc. or any of its Subsidiaries has the right to (i) direct
the qualified intermediary to return such cash to Ventas, Inc. or such Subsidiary if and when
Ventas, Inc. or such Subsidiary fails to identify or acquire the proposed like-kind property or at
the end of the 180-day replacement period or (ii) direct the qualified intermediary to use such
cash to acquire like-kind property.


 


10









 





“Unsecured Debt” means, as of any date, that portion of the aggregate principal amount
of all outstanding Debt of Ventas, Inc. and its Subsidiaries as of that date that is neither
Secured Debt nor Contingent Liabilities of Ventas, Inc. and its Subsidiaries.



ARTICLE II




REDEMPTION




Section 2.01 Amendment to Article 3. Pursuant to Sections 2.02(7) and 2.02(8) of the
Base Indenture, Article 3 of the Base Indenture is hereby amended with respect to the Notes by
adding to the end the following new Sections 3.09 and 3.10, in each case to read as follows:




“Section 3.09 Optional Redemption.




(a) The Issuers may, at their option, redeem the Notes at any time prior
to maturity, in whole or from time to time in part.




(b) The redemption price for any redemption of the Notes shall be equal
to the sum of (1) the principal amount of the Notes being redeemed, (2)
accrued and unpaid interest thereon to the redemption date, and (3) the
Make-Whole Amount, if any (subject to the right of holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date).




(c) Any redemption pursuant to this Section 3.09 shall be made pursuant
to the provisions of Sections 3.01 through 3.07 of the Indenture.




Section 3.10 Mandatory Redemption. The Issuers are not required to
make mandatory redemption payments with respect to the Notes.”



ARTICLE III




COVENANTS





Section 3.01 Amendments to Article 4.



(a) Pursuant to Section 2.02(14) of the Base Indenture, Section 4.03 of the Base Indenture is
hereby amended with respect to the Notes by deleting the text thereof in its entirety and inserting
in its place the following:




“Section 4.03 Reports. Whether or not required by the Commission, so
long as any Notes are outstanding, Ventas, Inc. shall file with the Trustee,
within 15 days after it files the same with the Commission (or if not subject
to the periodic reporting requirements of the Exchange Act, within 15 days
after it would have been required to file the same with the Commission had it
been so subject):




(1) all quarterly and annual financial information that is required to
be contained in filings with the Commission on Forms 10-Q and 10-K, including
a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the
annual financial statements by Ventas, Inc.’s certified independent
accountants; and



 


11









 








(2) all current reports that are required to be filed with the
Commission on Form 8-K.




For so long as any Notes remain outstanding, if at any time Ventas, Inc.
is not required to file with the Commission the reports required by the
preceding paragraph of this Section 4.03, Ventas, Inc. shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.




The availability of the foregoing materials on the Commission’s website
or on Ventas, Inc.’s website shall be deemed to satisfy the foregoing
delivery obligations.”



(b) Pursuant to Section 2.02(14) of the Base Indenture, Section 4.04 of the Base Indenture is
hereby amended with respect to the Notes by deleting the text thereof in its entirety and inserting
in its place the following:




“Section 4.04 Compliance Certificate. “Ventas, Inc. shall deliver to
the Trustee, within 120 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of Ventas, Inc. and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether
Ventas, Inc. has kept, observed, performed and fulfilled its obligations
under the Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge, Ventas, Inc. has
kept, observed, performed and fulfilled each and every covenant contained in
the Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of the Indenture (or, if a Default or
Event of Default has occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action Ventas, Inc. is
taking or proposes to take with respect thereto) and that to the best of his
or her knowledge, no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the
Securities of any series is prohibited or if such event has occurred, a
description of the event and what action Ventas, Inc. is taking or proposes
to take with respect thereto. For purposes of this Section 4.04, such
compliance shall be determined without regard to any period of grace or
requirement of notice under the Indenture.”


 


12









 





(c) Pursuant to Section 2.02(14) of the Base Indenture, Section 4.06 of the Base Indenture is
hereby amended with respect to the Notes by deleting the text thereof in its entirety and inserting
in its place the following:




“Section 4.06 Corporate Existence. Except as permitted by Article 5
and Section 10.04, Ventas, Inc. and the Issuers shall do all things necessary
to preserve and keep their existence, rights and franchises; provided,
however, that none of Ventas, Inc. or the Issuers shall be required to
preserve any such right or franchise if Ventas, Inc. or such Issuer, as
applicable, shall determine reasonably and in good faith that the
preservation thereof is no longer desirable in the conduct of its business.”



(d) Pursuant to Section 2.02(14) of the Base Indenture, Article 4 of the Base Indenture is
hereby amended with respect to the Notes by adding to the end the following new Sections 4.07
through 4.11, in each case to read as follows:




“Section 4.07 Taxes. Ventas, Inc. will pay, and will cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.




Section 4.08 Stay, Extension and Usury Laws. Each of Ventas, Inc. and
the Issuers covenants (to the extent that they may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of the Indenture; and each of Ventas, Inc. and the Issuers
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.




Section 4.09 Restrictions on Activities of Ventas Capital. Ventas
Capital may not hold any material assets, become liable for any material
obligations or engage in any significant business activities; provided,
however, that Ventas Capital may be a co-obligor with respect to Debt if the
Partnership is a primary obligor of such Debt and the net proceeds of such
Debt are received by the Partnership or one or more of its Subsidiaries
other than Ventas Capital.


 


13









 






Section 4.10 Limitations on Incurrence of Debt.




(a) Ventas, Inc. shall not, and shall not permit any of its Subsidiaries
to, Incur any Debt if, immediately after giving effect to the Incurrence of
such additional Debt and any other Debt Incurred since the
end of the Latest Completed Quarter and the application of the net
proceeds therefrom, the aggregate principal amount of all outstanding Debt
would exceed 60% of the sum of (without duplication) (i) Total Assets as of
the end of the Latest Completed Quarter 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 such proceeds were not
used to acquire Real Estate Assets or mortgages receivable or to reduce
Debt), since the end of the Latest Completed Quarter.




(b) Ventas, Inc. shall not, and shall not permit any of its Subsidiaries
to, Incur any Secured Debt if, immediately after giving effect to the
Incurrence of such additional Secured Debt and any other Secured Debt
Incurred since the end of the Latest Completed Quarter and the application of
the net proceeds therefrom, the aggregate principal amount of all outstanding
Secured Debt would exceed 50% of the sum of (without duplication) (i) Total
Assets as of the end of the Latest Completed Quarter 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 such
proceeds were not used to acquire Real Estate Assets or mortgages receivable
or to reduce Debt), since the end of the Latest Completed Quarter.




(c) Ventas, Inc. shall not, and shall not permit any of its Subsidiaries
to, Incur any Debt if, immediately after giving effect to the Incurrence of
such additional Debt and any other Debt Incurred since the end of the Latest
Completed Quarter and the application of the net proceeds therefrom, the
ratio of Consolidated EBITDA to Interest Expense for the four (4) consecutive
fiscal quarters ending with the Latest Completed Quarter would be less than
1.50 to 1.00 on a pro forma basis and calculated on the assumption (without
duplication) that:




(i) the additional Debt and any other Debt Incurred by Ventas,
Inc. or any of its Subsidiaries since the first day of such
four-quarter period to the date of determination, which was
outstanding at the date of determination, had been Incurred at the
beginning of that period and continued to be outstanding throughout
that period, and the application of the net proceeds of such Debt,
including to refinance other Debt, had occurred at the beginning of
such period; provided, that in determining the amount of Debt so
Incurred, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt
during such period;




(ii) the repayment or retirement of any other Debt repaid or
retired by Ventas, Inc. or any of its Subsidiaries since the first
day of such four-quarter period to the date of determination had
occurred at the beginning of that period; provided, that in
determining the amount of Debt so repaid or retired, the amount
of Debt under any revolving credit facility shall be computed based
upon the average daily balance of such Debt during such period; and


 


14









 






(iii) in the case of any acquisition or disposition of any asset
or group of assets (including, without limitation, by merger, or
stock or asset purchase or sale) or the placement of any assets in
service or removal of any assets from service by Ventas, Inc. or any
of its Subsidiaries since the first day of such four-quarter period
to the date of determination, the acquisition, disposition, placement
in service or removal from service and any related repayment or
refinancing of Debt had occurred as of the first day of such period,
with the appropriate adjustments to Consolidated EBITDA and Interest
Expense with respect to the acquisition, disposition, placement in
service or removal from service being included in that pro forma
calculation.




Section 4.11 Maintenance of Unencumbered Assets. Ventas, Inc. and its
Subsidiaries shall maintain at all times Unencumbered Assets of not less than
150% of the aggregate principal amount of all outstanding Unsecured Debt.”



ARTICLE IV




SUCCESSORS





Section 4.01 Amendments to Article 5.



(a) Pursuant to Section 2.02(14) of the Base Indenture, Section 5.01 of the Base Indenture is
hereby amended with respect to the Notes by deleting the text thereof in its entirety and inserting
in its place the following:




“Section 5.01 Merger, Consolidation, or Sale of Assets.




Ventas, Inc. may not, directly or indirectly: (a) consolidate or merge
with or into another Person (whether or not Ventas, Inc. is the surviving
corporation); or (b) sell, assign, transfer, convey, lease (other than to an
unaffiliated operator in the ordinary course of business) or otherwise
dispose of all or substantially all of the properties or assets of Ventas,
Inc. and its Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:




(1) either:




(i) Ventas, Inc. is the surviving corporation; or


 


15









 






(ii) the Person formed by or surviving any such consolidation or
merger (if other than Ventas, Inc.) or to which such
sale, assignment, transfer, conveyance or other disposition has
been made is a corporation organized or existing under the laws of
the United States, any state of the United States or the District of
Columbia;




(2) the Person formed by or surviving any such consolidation or merger
(if other than Ventas, Inc.) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all of
Ventas, Inc.’s obligations under the Notes and the Indenture pursuant to
agreements reasonably satisfactory to the Trustee; and




(3) immediately after such transaction, on a pro forma basis giving
effect to such transaction or series of transactions (and treating any
obligation of Ventas, Inc. or any Subsidiary incurred in connection with or
as a result of such transaction or series of transactions as having been
incurred at the time of such transaction), no Default or Event of Default
exists under the Indenture.




Notwithstanding anything to the contrary in this Section 5.01, the
Guarantor may consolidate or merge with or into an Issuer, or sell and/or
transfer to an Issuer all or substantially all of its assets, in each case,
without compliance with any of the requirements set forth in this Article 5.”



(b) Pursuant to Sections 2.02(14) of the Base Indenture, Article 5 of the Base Indenture is
hereby amended with respect to the Notes by adding to the end the following new Sections 5.03 and
5.04, in each case to read as follows:




“Section 5.03 Assumption by the Guarantor.




The Guarantor, or a Subsidiary thereof that is organized and existing under the
laws of the United States, any State of the United States or the District of
Columbia, may directly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all the Notes and the
performance of every covenant of the Indenture on the part of the Issuer(s) to be
performed or observed. Upon any such assumption, the Guarantor or such Subsidiary
shall succeed to, and be substituted for and may exercise every right and power of,
the Issuer(s) under the Indenture with the same effect as if the Guarantor or such
Subsidiary had been named as the Issuer(s) herein and the Issuer(s) shall be
released from liability as obligor on the Notes.




Section 5.04 Termination of the Guarantee.




The obligations of the Guarantor under the Indenture shall terminate at such
time the Guarantor merges or consolidates with an Issuer or at such other time as an
Issuer acquires all of the assets and partnership interests of the Guarantor.”


 


16









 





ARTICLE V




DEFAULTS AND REMEDIES





Section 5.01 Amendments to Article 6.



(a) Pursuant to Section 2.02(14) of the Base Indenture, Section 6.01 of the Base Indenture is
hereby amended with respect to the Notes by deleting the text thereof in its entirety and inserting
in its place the following:




“Section 6.01. Events of Default.




Each of the following is an “Event of Default”:




(1) Ventas, Inc. or the Issuers do not pay the principal or any premium on any Note
when due and payable;




(2) Ventas, Inc. or the Issuers do not pay interest on any Note within 30 days after
the applicable due date;




(3) Ventas, Inc. or its Subsidiaries remain in breach of any other term of the
Indenture for 90 days after they receive a notice of Default stating they are in breach.
Either the Trustee or the Holders of more than 25% in aggregate principal amount of the
Notes then Outstanding may send the notice;




(4) except as permitted by the Indenture and the Notes, the Securities Guarantee by the
Guarantor shall cease to be in full force and effect or the Guarantor shall deny or
disaffirm its obligations with respect thereto;




(5) the Issuers, Ventas, Inc. or any of its Significant Subsidiaries default under any
of their indebtedness (including a default with respect to Securities of any series under
the Indenture other than the Notes) in an aggregate principal amount exceeding $50.0 million
after the expiration of any applicable grace period, which default results in the
acceleration of the maturity of such indebtedness. Such default is not an Event of Default
if the other indebtedness is discharged, or the acceleration is rescinded or annulled,
within a period of 30 days after the Issuers, Ventas, Inc. or any such Significant
Subsidiary, as the case may be, receives notice specifying the default and requiring that
they discharge the other indebtedness or cause the acceleration to be rescinded or annulled.
Either the Trustee or the Holders of more than 25% in aggregate principal amount of the
Notes then Outstanding may send the notice;




(6) the Issuers, Ventas, Inc. or any of its Significant Subsidiaries, or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary:




(i) commence a voluntary case;


 


17









 






(ii) consent to the entry of an order for relief against them in an involuntary
case;




(iii) consent to the appointment of a custodian of them or for all or
substantially all of their property;




(iv) make a general assignment for the benefit of their creditors; or




(v) generally are not paying their debts as they become due; or




(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




(i) is for relief against the Issuers, Ventas, Inc. or any of its Significant
Subsidiaries, or any group of Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary, in an involuntary case;




(ii) appoints a custodian of the Issuers, Ventas, Inc. or any of its
Significant Subsidiaries, or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, or for all or substantially all of the property
of the Issuers, Ventas, Inc. or any of its Significant Subsidiaries, or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; or




(iii) orders the liquidation of the Issuers, Ventas, Inc. or any of its
Significant Subsidiaries, or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days.”



(b) Pursuant to Section 2.02(14) of the Base Indenture, Section 6.02 of the Base Indenture is
hereby amended with respect to the Notes by (i) deleting the first sentence thereof in its entirety
and inserting in its place the following:




“In the case of an Event of Default specified in clause (6) or (7) of
Section 6.01, with respect to the Issuers, Ventas, Inc. or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, all Outstanding Notes will become
due and payable immediately without further action or notice.”



and (ii) adding to the end of Section 6.02 the following:




“Notwithstanding anything to the contrary contained in the Indenture,
the sole remedy for an Event of Default relating to a failure to comply with
any of the provisions of Section 4.03 hereof shall consist exclusively of the
right to receive additional interest on the Notes at an annual rate equal to
0.25% of the outstanding principal amount of the
Notes. This additional interest will be payable in the same manner and
on the same dates as the stated interest payable on the Notes and will accrue
on all Outstanding Notes from and including the date on which such Event of
Default first occurs to, but not including, the date on which such Event of
Default shall have been cured or waived.”


 


18









 





(c) Pursuant to Section 2.02(14) of the Base Indenture, Section 6.08 of the Base Indenture is
hereby amended with respect to the Notes by deleting from the first line thereof the reference to
clause (3) of Section 6.01 of the Base Indenture.



ARTICLE VI




TRUSTEE




Section 6.01 Amendments to Article 7. Pursuant to Section 2.02(14) of the Base
Indenture, Section 7.07(e) of the Base Indenture is hereby amended with respect to the Notes by
changing the references to Section 6.01(7) or (8) therein to Section 6.01(6) or (7).



ARTICLE VII




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 7.01 Applicability of Defeasance Provisions. Pursuant to Sections 2.02(17)
and 8.01 of the Base Indenture, so long as any of the Notes are Outstanding, Sections 8.02 and 8.03
of the Base Indenture shall be applicable to the Notes.



Section 7.02 Determinations Under Section 8.03. For the purposes of Sections 2.02(17)
and 8.03 of the Base Indenture, Section 8.03 of the Base Indenture shall apply to Sections 4.09
through 4.11, inclusive.



Section 7.03 Determination Under Section 8.07. For the purposes of Sections 8.07 and
11.02 of the Base Indenture, the provisions of Section 8.07 of the Base Indenture shall apply to
the Notes.




Section 7.04 Amendments to Article 8.



(a) Pursuant to Section 2.02(14) of the Base Indenture, the last sentence of Section 8.03 of
the Base Indenture is hereby amended with respect to the Notes by changing the references to
Sections 6.01(4) through 6.01(6) therein to Sections 6.01(3) through 6.01(5).



(b) Pursuant to Section 2.02(14) of the Base Indenture, clause (5) of Section 8.04 of the Base
Indenture is hereby amended with respect to the Notes by deleting the text thereof in its entirety
and inserting in its place the following:




“(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material agreement
or instrument (other than the Indenture in respect of the Notes)
to which any of Ventas, Inc. or the Issuers is a party or by which any
of Ventas, Inc. or the Issuers is bound;”


 


19









 





(c) Pursuant to Section 2.02(14) of the Base Indenture, clause (2) of Section 8.07(c) of the
Base Indenture is hereby amended with respect to the Notes by deleting the references to
“Restricted Subsidiaries” and replacing such references with the word “Subsidiaries.”



ARTICLE VIII




GUARANTEES





Section 8.01 Applicability of Guarantee Provisions.



(a) Pursuant to Sections 2.02(1) and 10.01 of the Base Indenture, so long as any of the Notes
are Outstanding, Article 10 shall be applicable to the Notes.



(b) To evidence its Guarantee in accordance with Section 10.03 of the Indenture, the Guarantor
agrees that a notation of such Guarantee substantially in the form attached as Exhibit B
hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by
the Trustee and that the Indenture has been executed on behalf of such Guarantor by one of its
Officers.



ARTICLE IX




MISCELLANEOUS




Section 9.01 Determination Under Section 13.10. For the purposes of Section 13.10 of
the Base Indenture, the agreements of the Guarantor will bind its successors except as otherwise
provided in Article 10 of the Base Indenture.




Section 9.02 Application of Third Supplemental Indenture; Ratification.



(a) Each and every term and condition contained in this Third Supplemental Indenture that
modifies, amends or supplements the terms and conditions of the Base Indenture shall apply only to
the Notes created hereby and not to any future series of Securities established under the
Indenture.



(b) The Base Indenture, as supplemented and amended by this Third Supplemental Indenture, is
in all respects ratified and confirmed, and the Base Indenture and this Third Supplemental
Indenture shall be read, taken and construed as the same instrument.



(c) In the event of any conflict between this Third Supplemental Indenture and the Base
Indenture, the provisions of this Third Supplemental Indenture shall prevail.


 


20









 





Section 9.03 Benefits of Third Supplemental Indenture. Nothing contained in this
Third Supplemental Indenture shall or shall be construed to confer upon any Person other than a
Holder of the Notes, the Issuers, the Guarantor or the Trustee any right or interest to avail
itself of any benefit under any provision of the Base Indenture or this Third Supplemental
Indenture.



Section 9.04 Effective Date. This Third Supplemental Indenture shall be effective as
of the date first above written and upon the execution and delivery hereof by each of the parties
hereto.



Section 9.05 Governing Law. This Third Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York, without regard to conflicts of
laws principles thereof.



Section 9.06 Counterparts. This Third Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



 


21









 





IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed by their respective officers hereunto duly authorized, all as of the day and year
first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	VENTAS REALTY, LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Ventas, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	/s/ T. Richard Riney	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	T. Richard Riney	 	 
	 

	 	 	 	 	 	 	 	Title:
	 	Executive Vice President, Chief

Administrative Officer, General

Counsel and Corporate Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	VENTAS CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ T. Richard Riney	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name:	 	T. Richard Riney	 	 
	 	 	 	 	 	 	Title:	 	Executive Vice President and 

Associate Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	GUARANTOR	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	VENTAS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ T. Richard Riney	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name:	 	T. Richard Riney	 	 
	 	 	 	 	 	 	Title:	 	Executive Vice President, Chief

Administrative Officer, General Counsel

and Corporate Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	TRUSTEE	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Robert T. Jones	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name:	 	Robert T. Jones	 	 
	 	 	 	 	 	 	Title:	 	Vice President	 	 





 


 









 






SCHEDULE 1


[Intentionally Omitted]





 


1-1









 





EXHIBIT A


FORM OF NOTE




[Face of Note]




CUSIP # 92276M AV7




3.125% Senior Note due 2015




			
	 	 	 
	No. _______	 	$ _________________






VENTAS REALTY, LIMITED PARTNERSHIP




AND




VENTAS CAPITAL CORPORATION




promises to pay to CEDE & CO. or registered assigns, the principal sum of ____________________



Dollars on November 30, 2015.




Interest Payment Dates: May 30 and November 30




Record Dates: May 15 and November 15




Dated: _____________, 20____



THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2)
THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE
INDENTURE, (3) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.


 


A-1









 





UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL
ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH
INFORMATION TO THE ISSUERS AT THE FOLLOWING ADDRESS: C/O VENTAS, INC., 10350 ORMSBY PARK PLACE,
SUITE 300, LOUISVILLE, KENTUCKY 40223, ATTENTION: T. RICHARD RINEY, GENERAL COUNSEL


 


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	 	 	VENTAS REALTY, LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Ventas, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	VENTAS CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 





 


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This is one of the Securities of the

series designated therein referred to

in the within-mentioned Indenture:




	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,
as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 





 


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[Back of Note]




3.125% Senior Notes due 2015




Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




(1) Interest. Ventas Realty, Limited Partnership and Ventas Capital Corporation
(collectively, the “Issuers”) promise to pay interest on the principal amount of
this Note at 3.125% per annum from November 16, 2010 until maturity. The Issuers will pay
interest semi-annually in arrears on May 30 and November 30 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment
Date”). Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from November 16, 2010; provided, that if
there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be May 30, 2011. The Issuers
will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at a rate that is
1% per annum in excess of the rate then in effect; the Issuers will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest (without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.




(2) Method of Payment. The Issuers will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the
May 15 or November 15 (each, a “Record Date”) next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and interest at the
office or agency of the Issuers maintained for such purpose within or without the City and
State of New York, or, at the option of the Issuers, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the register of Holders;
provided, that payment by wire transfer of immediately available funds will be required with
respect to principal of and interest and premium, if any, on all Global Notes and all other
Notes the Holders of which will have provided wire transfer instructions to the Issuers or
the Paying Agent. Such payment will be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.




(3) Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers or any
of their Subsidiaries may act in any such capacity.


 


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(4) Indenture. The Issuers issued the Notes under an indenture, dated as of September
19, 2006 (the “Base Indenture”), as amended by the Third Supplemental Indenture,
dated as of November 16, 2010 (the “Third Supplemental Indenture” and, together with
the Base Indenture and as the Base Indenture and the Third Supplemental Indenture may be
further amended and supplemented from time to time, the “Indenture”), among the
Issuers, the Guarantors named therein and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. To the extent any provision of this Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are unsecured obligations of the Issuers.




(5) Optional Redemption. (a) The Issuers may, at their option, redeem the Notes at any
time prior to maturity, in whole or from time to time in part.




(b) The redemption price for any redemption of the Notes shall be equal to the sum of
(i) the principal amount of the Notes being redeemed, (ii) accrued and
unpaid interest thereon to the redemption date, and (iii) the Make-Whole Amount, if any
(subject to the right of holders of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date).




(c) Any redemption of the Notes shall be made pursuant to the provisions of Sections
3.01 through 3.07 of the Indenture.




(6) Mandatory Redemption.




The Issuers will not be required to make mandatory redemption payments with respect to
the Notes.




(7) Notice of Redemption. Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder whose Notes are to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to
be redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.




(8) Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Issuers need not exchange or
register the transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed
in part. Also, the Issuers need not exchange or register the transfer of any Notes for
a period of 15 days before a selection of Notes to be redeemed or during the period between
a Record Date and the corresponding Interest Payment Date.


 


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(9) Persons Deemed Owners. The registered Holder of a Note may be treated as its owner
for all purposes.




(10) Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture,
the Securities Guarantee or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then Outstanding Securities
affected by such amendment or supplemental indenture voting as a single class, and any
existing Default or Event of Default or compliance with any provision of the Indenture, the
Securities Guarantee or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then Outstanding Securities affected thereby voting as a
single class. Without the consent of any Holder of a Note, the Indenture, the Securities
Guarantee or the Notes may be amended or supplemented to, among other things, cure any
ambiguity, defect or inconsistency; to provide for uncertificated Notes in addition to or in
place of certificated Notes; to provide for the assumption of the Issuers’ obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the Issuers’ assets; add additional Guarantees with respect to the Notes; secure the
Notes; to make any other change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder; or to comply with requirements of the Commission in order to effect or
maintain the qualification of the applicable Indenture under the Trust Indenture Act.




(11) Defaults and Remedies. Events of Default with respect to the Notes include: (i)
default in the payment of principal or any premium on the Notes when due and payable; (ii)
default in the payment of interest on the Notes within 30 days after the applicable due
date; (iii) breach of any other term of the Indenture for 90 days after receipt of a notice
of Default stating the Issuers are in breach; (iv) default under any of certain Debt of the
Issuers, Ventas, Inc. and its Significant Subsidiaries, which default results in the
acceleration of the maturity of such indebtedness, unless such other Debt is discharged, or
the acceleration is rescinded or annulled, within 30 days after the Issuers, Ventas, Inc. or
its Significant Subsidiaries, as applicable, receive notice of the default; and (v) certain
events in bankruptcy, insolvency or reorganization occur with respect to the Issuers,
Ventas, Inc. or any of its Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of the then
Outstanding Notes may declare the entire principal amount of the Notes to be due and
payable; provided, that the sole remedy for an Event of Default relating to a failure to
comply with any of the provisions of Section 4.03 of the Indenture shall consist exclusively
of the right to receive additional interest on the Notes in accordance with the terms set
forth in the Indenture. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all Outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. Subject to certain
limitations, the Holders of a majority in principal amount of the then Outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default in the payment of principal, premium, if any, or
interest) if and so long as it determines that withholding notice is in the interest of the
Holders of the Notes. Subject to certain exceptions, the Holders of a majority in aggregate
principal amount of the then Outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the
payment of principal of, premium, if any, or interest on the Notes. The Issuers are
required to deliver to the Trustee annually a statement regarding compliance with the
Indenture.


 


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(12) Trustee Dealings with Issuers. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Issuers or
their Affiliates, and may otherwise deal with the Issuers or its Affiliates as if it were
not the Trustee.




(13) No Recourse Against Others. No director, officer, employee or stockholder of
Ventas, Inc. or any of its Subsidiaries, as such, will have any liability for any
obligations of Ventas, Inc. or any of its Subsidiaries under the Notes or the Indenture
based on, in respect of, or by reason of such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The foregoing waiver and release
are an integral part of the consideration for the issuance of the Notes.




(14) Authentication. This Note will not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.




(15) Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




(16) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.


 


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The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:



Ventas Realty, Limited Partnership

Ventas Capital Corporation

c/o Ventas, Inc.

10350 Ormsby Park Place, Suite 300

Louisville, Kentucky 40223

Attention: General Counsel



 


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Assignment Form




	 	 	 
	To assign this Note, fill in the form below:
	 	 
	 
	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 



(Insert assignee’s Soc. Sec. or Tax I.D. No.)



 




 




 




 



(Print or type assignee’s name, address and zip code)



	 	 	 
	and irrevocably appoint
	 	 
	 

	 	 
	to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.






Date: _______________




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	(Sign exactly as your name appears on the face
of this Note)	 	 






Signature Guarantee*: ___________________





	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).



 


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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1




The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	 	Principal Amount	 	 
	 	 	decrease in	 	Amount of increase	 	of this Global	 	Signature of
	 	 	Principal Amount	 	in Principal	 	Note following	 	authorized
	 	 	of this Global	 	Amount of this	 	such decrease	 	officer of Trustee
	Date of Exchange	 	Note	 	Global Note	 	(or increase)	 	or Custodian
	 
	 	 	 	 	 	 	 	 





 





	 	 	 
	1	 	This schedule should be included only if the Note is issued in global form.



 


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EXHIBIT B




FORM OF NOTATION OF SECURITIES GUARANTEE




For value received, the Guarantor (which term includes any successor Person under the
Indenture hereinafter referred to) has unconditionally guaranteed to the extent set forth in, and
subject to the provisions of, an indenture dated as of September 19, 2006 (the “Base
Indenture”), as amended by the Third Supplemental Indenture, dated as of November 16, 2010 (the
“Third Supplemental Indenture” and, together with the Base Indenture and as the Base
Indenture and the Third Supplemental Indenture may be further amended and supplemented from time to
time, the “Indenture”) among Ventas Realty, Limited Partnership and Ventas Capital
Corporation (collectively, the “Issuers”), the Guarantor named therein and U.S. Bank
National Association, as trustee (the “Trustee”), providing for the issuance of 3.125%
Senior Notes due 2015, (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue principal of and
interest on the Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Issuers to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligation of the Guarantor to the Holders of Notes and to the Trustee pursuant
to the Securities Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Securities
Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such
provisions.



	 	 	 	 	 	 	 	 	 
	 	 	VENTAS, INC.	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 







 


B-1