Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UKT/P2nKpBU2dMoxTHh7w9H+GEhmxCPMctZkJpOqQHGK1gg9/jnv0DDNR7buOeOn DGWJ6CsL4ksl8yVF1vjMMQ== 0001193125-03-087183.txt : 20031126 0001193125-03-087183.hdr.sgml : 20031126 20031126172041 ACCESSION NUMBER: 0001193125-03-087183 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20031126 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ELDERTRUST CENTRAL INDEX KEY: 0001043236 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 232932973 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-52713 FILM NUMBER: 031027356 BUSINESS ADDRESS: STREET 1: 101 E STATE ST STREET 2: STE 100 CITY: KENNETT SQUARE STATE: PA ZIP: 19348 BUSINESS PHONE: 6109254200 MAIL ADDRESS: STREET 1: 101 EAST STATE STREET STREET 2: STE 100 CITY: KENNETT SQUARE STATE: PA ZIP: 19348 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VENTAS INC CENTRAL INDEX KEY: 0000740260 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 611055020 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 10350 ORMSBY PARK PLACE STREET 2: SUITE 300 CITY: LOUISVILLE STATE: KY ZIP: 40223 BUSINESS PHONE: 5023579000 MAIL ADDRESS: STREET 1: 10350 ORMSBY PARK PLACE STREET 2: SUITE 300 CITY: LOUISVILLE STATE: KY ZIP: 40223 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. )*

ELDERTRUST

(Name of Issuer)

Common shares of beneficial interest, par value $0.01 per share

(Title of Class of Securities)

284560 10 9

(CUSIP Number)

T. Richard Riney

Executive Vice President and General Counsel

Ventas, Inc.

10350 Ormsby Park Place, Suite 300

Louisville, Kentucky 40223

(502) 357-9000

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

Copies to:

Thomas M. Cerabino, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019-6099

(212) 728-8000

November 19, 2003

(Date of Event which Requires

Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 284560 10 9


1	NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Ventas, Inc.

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) ¨

3	SEC USE ONLY

4	SOURCE OF FUNDS (See Instructions) OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	¨

6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER

8 SHARED VOTING POWER

927,129 (See Item 5)

9 SOLE DISPOSITIVE POWER

10 SHARED DISPOSITIVE POWER

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 927,129 (See Item 5)

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)	¨

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.9% (See Item 5)

14	TYPE OF REPORTING PERSON (See Instructions) CO

Item 1. Security and Issuer

This statement on Schedule 13D relates to common shares of beneficial interest, par value $0.01 per share (“ElderTrust Common Stock”) in ElderTrust, a Maryland real estate investment trust (“ElderTrust”), and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The principal executive offices of ElderTrust are located at 2711 Centerville Road, Suite 108, Wilmington, DE 19808.

Item 2. Identity and Background.

This statement is filed on behalf of Ventas, Inc., a Delaware corporation (“Ventas”). The address of the principal business and principal office of Ventas is 10350 Ormsby Park Place, Suite 300, Louisville, Kentucky 40223. Ventas is a healthcare real estate investment trust that owns and invests in hospitals, nursing facilities and other healthcare and senior housing facilities.

The names, residence or business address, present principal occupations or employment and citizenship of the executive officers and directors of Ventas are set forth in Annex A hereto.

During the last five years, neither Ventas nor, to the best knowledge of Ventas, any person named in Annex A, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration.

ElderTrust, Ventas and Ventas Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of Ventas (“Ventas Sub”), have entered into an Agreement and Plan of Merger, dated as of November 19, 2003 (the “Merger Agreement”), providing for the merger of Ventas Sub with and into ElderTrust (the “Merger”), with ElderTrust surviving the Merger as a wholly owned subsidiary of Ventas. Pursuant to the Merger Agreement, each share of ElderTrust Common Stock will be exchanged in the Merger for the right to receive $12.50 in cash following the Merger, subject to adjustment as provided in the Merger Agreement. It is currently expected that the cash consideration paid by Ventas to the holders of ElderTrust Common Stock pursuant to the Merger Agreement will be financed by Ventas through its available working capital and through the available working capital of ElderTrust at the time of the Merger.

Concurrently with the execution and delivery of the Merger Agreement, Ventas entered into a Voting Agreement, dated as of November 19, 2003 (the “Voting Agreement”), with those stockholders of ElderTrust listed therein (the “ElderTrust Stockholders”). Pursuant to the Voting Agreement, each ElderTrust Stockholder has agreed that until the termination of the

Voting Agreement, such ElderTrust Stockholder will, among other things, vote all shares of ElderTrust Common Stock owned by such ElderTrust Stockholder in favor of the approval and adoption of the Merger Agreement and the Merger (as more fully described in Item 6 hereof).

Copies of the Merger Agreement and the Voting Agreement are included as Exhibits 1 and 2, respectively, to this Schedule 13D and are incorporated herein by reference. The descriptions contained herein of the Merger Agreement and the Voting Agreement are qualified in their entirety by reference to the full text of such agreements.

Item 4. Purpose of Transaction.

The Voting Agreement was entered into in order to facilitate the consummation of the transactions contemplated by the Merger Agreement.

Other than pursuant to the Merger Agreement or as described in Item 6 hereof, neither Ventas nor, to the best knowledge of Ventas, any person listed in Annex A hereto, has any plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of ElderTrust or the disposition of securities of ElderTrust; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving ElderTrust or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of ElderTrust or any of its subsidiaries; (d) any change in the present Board of Directors or management of ElderTrust, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of ElderTrust; (f) any other material change in ElderTrust ‘s business or corporate structure; (g) changes in ElderTrust’s charter, By-Laws or instruments corresponding thereto or other actions which may impede the acquisition of control of ElderTrust by any person; (h) causing a class of securities of ElderTrust to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of ElderTrust becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above (although Ventas reserves the right to develop such plans).

Item 5. Interest in Securities of the Issuer.

(a) and (b). As of November 19, 2003, 927,129 shares of ElderTrust Common Stock, were subject to the Voting Agreement (the “Voting Agreement Shares”). The Voting Agreement Shares represent approximately 11.9% of the issued and outstanding shares of ElderTrust Common Stock as of November 19, 2003, as represented by ElderTrust in the Merger Agreement. By virtue of the Voting Agreement, Ventas may be deemed to share with the ElderTrust Stockholders the power to vote or direct the voting of the Voting Agreement Shares. However, Ventas is not entitled to any other rights as a stockholder of ElderTrust as to the Voting Agreement Shares, and does not have any right to dispose or direct the disposition of the Voting Agreement Shares, except for the restrictions described in Item 6 hereof.

Pursuant to Rule 13d-4 under the Exchange Act, Ventas hereby states that this Schedule 13D shall not be deemed an admission that Ventas is, for the purposes of Section 13(d) of the Exchange Act, the beneficial owner of any equity securities of ElderTrust, and Ventas expressly disclaims beneficial ownership of the Voting Agreement Shares.

To the best knowledge of Ventas, no shares of ElderTrust Common Stock are beneficially owned by any of the persons named in Annex A.

(c). Neither Ventas, nor, to the best knowledge of Ventas, any person named in Annex A, has effected any transaction in ElderTrust Common Stock during the past 60 days.

(d) and (e). Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Pursuant to the Voting Agreement, and subject to the terms and conditions contained therein, each ElderTrust Stockholder has agreed that until the termination of the Voting Agreement, at the meeting of the stockholders of ElderTrust called to consider the Merger (including any adjournment thereof) (the “ElderTrust Stockholders Meeting”) or any other meeting of the stockholders of ElderTrust, however called, such ElderTrust Stockholder will (i) appear at such meeting of the stockholders of ElderTrust or otherwise cause all of the shares of ElderTrust Common Stock subject to the Voting Agreement (the “Subject Shares”) of such ElderTrust Stockholder to be counted as present therat for purposes of establishing a quorum and (ii) vote the Subject Shares of such ElderTrust Stockholder (A) in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement (which include certain amendments to the ElderTrust Articles of Amendment and Restatement of Declaration of Trust) and (B) against any action or agreement that is inconsistent with the Merger or would reasonably be expected to result in a breach of any covenant, representation or warranty of ElderTrust under the Merger Agreement or which would reasonably be expected to result in any of the conditions to the Merger Agreement not being fulfilled.

Pursuant to the Voting Agreement, and subject to the terms and conditions contained therein, each ElderTrust Stockholder has, in the event that such ElderTrust Stockholder fails to fulfill its obligations set forth in the preceding paragraph, also granted to Ventas a power of attorney until the termination of the Voting Agreement to execute and deliver an irrevocably proxy constituting and appointing Ventas such ElderTrust Stockholder’s true and lawful attorney and proxy to vote all of the Subject Shares of such ElderTrust Stockholder in a manner consistent with the preceding paragraph.

Pursuant to the Voting Agreement, and subject to the terms and conditions contained therein, each ElderTrust Stockholder has agreed that, until the termination of the Voting Agreement, such ElderTrust Stockholder shall not, directly or indirectly, without the prior written consent of Ventas, (i) sell, assign, transfer (including by operation of law), tender or otherwise dispose of (collectively, “Transfer”) any Subject Shares owned by such ElderTrust Stockholder, (ii) deposit any Subject Shares owned by such ElderTrust Stockholder into a voting

trust or enter into a voting agreement or arrangement with respect to such Subject Shares or grant any proxy or power of attorney with respect thereto that is inconsistent with the Voting Agreement, or (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect Transfer of such Subject Shares.

Concurrently with the execution and delivery of the Merger Agreement, Ventas also entered into Unitholder Purchase Agreements (the “Unitholder Agreements”), each dated as of November 19, 2003, with ElderTrust Operating Limited Partnership, a Delaware limited partnership and direct subsidiary of ElderTrust (“ETOP”), ElderTrust and the holder of Class A Units of ETOP (“Class A Units”) named therein (each such holder, a “Holder”). Pursuant to the Second Amended and Restated Agreement of Limited Partnership of ETOP, as amended (the “ETOP Partnership Agreement”), a holder of Class A Units has the right to require ETOP to redeem such holder’s Class A Units, at a redemption price equal to the value of one share of ElderTrust Common Stock per Class A Unit, payable in cash or ElderTrust Common Stock, subject to certain adjustments and the other terms and conditions of the ETOP Partnership Agreement. Under the Unitholder Agreements, and subject to the terms and conditions contained therein, each Holder has agreed, among other things, (i) contemporaneously with the consummation of the Merger, to sell (the “Sale”) its Class A Units to Ventas for cash consideration equal to the cash amount such Holder would have received pursuant to the Merger Agreement had such Holder elected to have redeemed its Class A Units for ElderTrust Common Stock immediately prior to the Merger and (ii) prior to the Sale, to give any vote, approval, consent or waiver that may be required under the terms of the ETOP Partnership Agreement in order to implement the Merger and the transactions contemplated by the Unitholder Agreements and the Merger Agreement.

Concurrently with the execution and delivery of the Merger Agreement, Ventas also entered into an Agreement of Class C (LIHTC) Unit Rights Modification (the “Class C Agreement”), dated as of November 19, 2003, with ETOP, Norland Plastics Company (the “Class C Unit Holder”), which is the sole holder of Class C (LIHTC) Units of ETOP (“Class C Units”), and ElderTrust. Pursuant to the Second Amended and Restated Agreement of Limited Partnership of ETOP, as amended (the “ETOP Partnership Agreement”), the Class C Units are redeemable on the same terms as the Class A Units. Under the Class C Agreement, and subject to the terms and conditions contained therein, the Class C Unit Holder has agreed, among other things, (i) as of the Effective Time (as defined in the Merger Agreement), to modify certain rights and obligations with respect to the Class C Units, as more fully described in the Class C Agreement, and (ii) prior to consummation of the Merger, to give any vote, approval, consent or waiver that may be required under the terms of the ETOP Partnership Agreement in order to implement the Merger and the transactions contemplated by the Class C Agreement and the Merger Agreement.

In connection with the execution and delivery of the Merger Agreement, the Board of Trustees of ElderTrust has authorized an Amendment, dated November 19, 2003 to the Rights Agreement, dated as of October 13, 1999, between ElderTrust and Wachovia Bank National Association (successor to First Union National Bank), as rights agent (the “Rights Agreement”), to eliminate the operation and effects of the Rights Agreement with respect to the execution, delivery and performance of the Merger Agreement, the public announcement thereof, and the consummation of the Merger.

Copies of the Unitholder Agreements are included as Exhibits 3 and 4 and the Class C Agreement is included as Exhibits 5 to this Schedule 13D. Such agreements are incorporated herein by reference. The descriptions contained herein of such agreements are qualified in their entirety by reference to the full text of such agreements.

Except as referred to above, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 or between such persons and any other person with respect to any securities of ElderTrust.

Item 7. Material to be Filed as Exhibits.

Exhibit		Description

1		Agreement and Plan of Merger, dated as of November 19, 2003, by and among Ventas, Inc., Ventas Sub, LLC and ElderTrust (incorporated by reference to Exhibit 2.1 of Ventas’s Current Report on Form 8-K filed November 21, 2003).

2		Voting Agreement, dated as of November 19, 2003, by and among Ventas, Inc. and the individuals and entities listed as “Shareholders” on the signature pages thereto.

3		Unitholder Purchase Agreement, dated as of November 19, 2003, by and among Ventas, Inc., ElderTrust Operating Limited Partnership, ElderTrust, and the seller identified on the signature page thereof.

4		Unitholder Purchase Agreement, dated as of November 19, 2003, by and among Ventas, Inc., ElderTrust Operating Limited Partnership, ElderTrust, and the seller identified on the signature page thereof.

5		Agreement of Class C (LIHTC) Unit Rights Modification, dated as of November 19, 2003, by and among ElderTrust Operating Limited Partnership, Norland Plastics Company, ElderTrust and Ventas, Inc.

SIGNATURES

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: November 26, 2003

VENTAS, INC.

By:		/s/ T. Richard Riney

Name: T. Richard Riney Title: Executive Vice President and General Counsel

ANNEX A

The name, business address and present principal occupation of each of the directors and executive officers of Ventas are set forth below. Each person’s business address is 10350 Ormsby Park Place, Suite 300, Louisville, KY 40223. Each such person is a citizen of the United States of America.

Directors of Ventas


Name		Principal Occupation or Employment and Principal Business Address for such Occupation or Employment

Debra A. Cafaro		Chairman, President and Chief Executive Officer of Ventas

Douglas Crocker II		Retired, Former Chief Executive Officer of Equity Residential Properties.

		Two North Riverside Plaza Suite 450 Chicago, IL 60606

Ronald G. Geary		Chairman, President and Chief Executive Officer of Res-Care, Inc., a provider of residential training and support services for persons with developmental disabilities.

		10140 Linn Station Road Louisville, KY 40233

Jay M. Gellert		President and Chief Executive Officer of Health Net, Inc., an integrated managed care organization which administers the delivery of managed healthcare services.

		21650 Oxnard St., 22nd Floor Woodland Hills, CA 91367-4975

Sheli Z. Rosenberg		Retired Vice Chairman, Equity Group Investments, LLC

		Two North Riverside Plaza Suite 600 Chicago, IL 60606

Thomas C. Theobald		Managing Director of William Blair Capital Partners, a private equity group.

		227 West Monroe, Ste. 3500 Chicago, IL 60606


		Executive Officers of Ventas

Name		Title with Ventas (Principal Occupation)

Debra A. Cafaro		See above

T. Richard Riney		Executive Vice President, General Counsel and Secretary

Raymond J. Lewis		Senior Vice President and Chief Investment Officer

Richard A. Schweinhart		Senior Vice President and Chief Financial Officer

EX-2 3 dex2.htm VOTING AGREEMENT Voting Agreement

Exhibit 2

VOTING AGREEMENT

THIS VOTING AGREEMENT, dated as of November 19, 2003 (this “Agreement”), is made by and among Ventas, Inc. a Delaware corporation (“Parent”), and the individuals and entities listed as “Shareholders” on the signature pages hereof (each, a “Shareholder” and, collectively, the “Shareholders”).

W I T N E S S E T H:

WHEREAS, as of the date hereof, each of the Shareholders owns beneficially and of record the number of common shares of beneficial interest, par value $ .01 per share (“Shares”), in Elder Trust, a Maryland real estate investment trust (the “Company”), in each case as set forth opposite such Shareholder’s name on Schedule I hereto;

WHEREAS, concurrently with the execution of this Agreement, Parent, Ventas Sub LLC, a Delaware limited liability company and a wholly owned direct subsidiary of Parent (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended and supplemented after the date hereof in accordance with its terms, the “Merger Agreement”; capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Merger Agreement), pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”); and

WHEREAS, as a condition to the willingness of the Company, Parent and Merger Sub to enter into the Merger Agreement, Parent has requested each of the Shareholders to agree, and in order to induce Parent and Merger Sub to enter into the Merger Agreement, such Shareholders are willing to agree, to vote in favor of adopting the Merger Agreement and approving the Merger and the other transactions contemplated by the Merger Agreement, upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree, severally and not jointly, as follows:

Section 1. VOTING OF SHARES.

(a) Until the termination of this Agreement in accordance with the terms hereof, each Shareholder hereby agrees, severally and not jointly, that, at the Company Shareholders Meeting (including any adjournment thereof) or any other meeting of the shareholders of the Company, however called, such Shareholder will (i) appear at the Company Shareholders Meeting or otherwise cause all Shares owned by such Shareholder to be counted as present thereat for purposes of establishing a quorum, (ii) vote all of such Shareholder’s Shares (A) in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement, and (B) against any action or agreement that is inconsistent with the Merger or would reasonably be expected to result in a breach of any covenant,

representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or which would reasonably be expected to result in any of the conditions to the Merger Agreement not being fulfilled. Each Shareholder agrees that it will, upon request by the Parent, furnish written confirmation, in form and substance reasonably acceptable to Parent, of such Shareholder’s vote in favor of the Merger Agreement and the Merger. Notwithstanding anything contained herein to the contrary, this Agreement shall not apply to any Shares as to which the Shareholder is a beneficial owner solely because he currently serves in a fiduciary capacity as an officer or director of a corporation with respect to the person or entity that directly owns those shares.

(b) In the event that any Shareholder fails to satisfy its obligations under paragraph (a) above, each Shareholder, severally and not jointly, hereby grants Parent a power of attorney up to and through the termination of this Agreement to execute and deliver a proxy in the form attached hereto as Annex A for and on behalf of such Shareholder.

(c) Notwithstanding the foregoing, nothing in this Agreement shall (i) limit or restrict any Shareholder, or any affiliate thereof, from acting in his capacity as trustee or officer of the Company, to the extent applicable, it being understood that this Agreement shall apply to any such Shareholder solely in his capacity as a Shareholder of the Company and (ii) nothing in this Agreement shall be interpreted as obligating the Shareholders to exercise any options to acquire Shares.

Section 2. TRANSFER OF SHARES. Each Shareholder, severally and not jointly, represents and warrants that it has no present intention of taking action to, prior to the termination of this Agreement, and shall not, directly or indirectly, without the prior written consent of Parent, (a) sell, assign, transfer (including by operation of law), tender or otherwise dispose of any of Shares owned by such Shareholder, (b) deposit any of the Shares owned by such Shareholder into a voting trust or enter into a voting agreement or arrangement with respect to the Shares or grant any proxy or power of attorney with respect thereto which is inconsistent with this Agreement, or (c) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect sale, transfer (including by operation of law) or other disposition of any Shares owned by such Shareholder, unless (y) such sale, assignment, transfer (including by operation of law) or other disposition of any such Shares is made for tax planning purposes and (z) each Person to which any of such Shares, or any interest in any of such Shares, is sold, assigned, transferred, tendered or otherwise obtained (i) is an immediate family member or an Affiliate of such Shareholder and (ii) shall have executed a counterpart of this Agreement and agreed in writing to hold such Shares (or interest in such Shares) subject to all of the terms and provisions of this Agreement (except to the extent prohibited by applicable law).

Section 3. PURCHASE OF SHARES. Each Shareholder, severally and not jointly, agrees that, if such Shareholder acquires any additional Shares, such additional Shares shall become subject to the terms of this Agreement. Each Shareholder who acquires additional Shares shall promptly notify Parent of such fact.

Section 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER. Each Shareholder, severally and not jointly, hereby represents, warrants and covenants to Parent with respect to itself and its ownership of its Shares as follows:

(a) Shareholder has all legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.

(b) Shareholder is the beneficial owner of the Shares set forth opposite the name of such Shareholder on Schedule I hereto and will continue to be the beneficial owner of such Shares until the termination of this Agreement. Except as contemplated by this Agreement, the Company Organizational Documents and federal securities laws, Shareholder owns all of such Shares free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, restrictions, charges, proxies and other encumbrances of any nature, and as of the Effective Time shall have no claim against the Company with respect to any of such Shares held by Shareholder.

(d) This Agreement constitutes the valid and binding agreement of such Shareholder, enforceable against Shareholder in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally, by general equity principles, (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) The execution and delivery of this Agreement by Shareholder does not, and the performance of this Agreement by Shareholder will not, (i) conflict with or violate any trust agreement or other similar documents relating to any trust of which Shareholder is trustee, (ii) conflict with or violate any law applicable to Shareholder or by which Shareholder or any of Shareholder’s properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any assets of Shareholder, including, without limitation, Shareholder’s Shares, pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which Shareholder is a party or by which Shareholder or any of Shareholder’s assets is bound or affected.

(f) Until the termination of this Agreement, Shareholder will not take any action that would cause the Company or any Company Subsidiary to be in breach of the Company’s obligations under Section 6.6 of the Merger Agreement; provided, that, the foregoing does not restrict any Shareholder that is a member of the Company’s Board of Trustees from taking any actions in such capacity to the extent permitted by

the Merger Agreement.

(g) Shareholder agrees to execute and deliver any additional documents necessary, in the reasonable opinion of Parent, to carry out the purpose and intent of this Agreement.

(h) Shareholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by Shareholder.

Section 5. TERMINATION. This Agreement shall terminate upon the earliest to occur of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with the terms thereof, or (iii) the mutual consent of the parties hereto; provided that no such termination shall relieve any party of liability for a breach hereof prior to termination.

Section 6. EXPENSES. Each party hereto shall be responsible for its own fees and expenses in connection with the entering into of this Agreement.

Section 7. MISCELLANEOUS.

(a) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement is not intended to confer upon any other person any rights or remedies hereunder. This Agreement may not be amended, modified or rescinded except by an instrument in writing signed by each of the parties hereto.

(b) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by a Shareholder by operation of Law (including by merger or consolidation) or otherwise without the prior written consent of Parent. Any assignment in violation of the preceding sentence shall be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and assigns. Parent may assign this Agreement and its rights hereunder to any entity in which it owns, directly or indirectly, a majority of the voting interests.

(c) The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power, or remedy or to demand such compliance. Each of the parties hereto agrees that it will use its reasonable best efforts to do all things necessary to effectuate this Agreement.

when sent if sent by facsimile; provided, however, that the fax is promptly confirmed by telephone confirmation thereof, (iii) when delivered, if delivered personally to the intended recipient, and (iv) one business day following sending by overnight delivery via a national courier service, and in each case, addressed to a party at the following address for such party:

If to a Shareholder:		To the address for such Shareholder set forth on Schedule I hereto

If to Parent:		Ventas, Inc.
		4360 Brownsboro Road
		Suite 115
		Louisville, KY 40207-1642
		Attention: General Counsel
		Facsimile: (502) 357-9050

With a copy to:		Willkie Farr & Gallagher LLP
		787 Seventh Avenue
		New York, NY 10019
		Attention: Thomas M. Cerabino, Esq.
		Facsimile: (212) 728-8111

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

(e) This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to the choice of law provisions thereof.

(f) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

(g) The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (i) if necessary, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

any other remedies at law or in equity, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and specific performance of the terms and provisions of this Agreement, subject to the discretion of the court before which any proceeding for such remedy may be brought.

(i) This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

(j) The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and paragraph references are to the sections and paragraphs of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns.

(k) The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first written above.

Ventas, Inc.

By:		/s/ T. Richard Riney
		Name: T. Richard Riney
		Title: Executive Vice President and General Counsel

SHAREHOLDERS:

/s/ D. Lee McCreary, Jr.
Name: D. Lee McCreary, Jr.

/s/ Michael R. Walker
Name: Michael R. Walker

/s/ James J. Clymer
Name: James J. Clymer

/s/ John G. Foos
Name: John G. Foos

/s/ Edward J. Rodgers
Name: Edward J. Rodgers

/s/ Rodman W. Moorhead III
Name: Rodman W. Moorhead III

/s/ Harold L. Zuber, Jr.
Name: Harold L. Zuber, Jr.

Schedule I

SHAREHOLDERS

Name and Address of Shareholder		Number of Shares Beneficially Owned
D. Lee McCreary, Jr. 110 Stone Tower Lane Wilmington, DE 19803		373,063

Michael R. Walker 2711 Centerville Road Suite 108 Wilmington, DE 19808		316,666

James J. Clymer Key Real Estate LLC 701 East Baltimore Pike Suite A2 Kennett Square, PA 19348		1,000

John G. Foos Independence Blue Cross 1901 Market Street, 45th Floor Philadelphia, PA 19103		37,200

Edward J. Rodgers Merion Investment Partners 700 S. Henderson Rd., Suite 202 King of Prussia, PA 19406		—

Rodman W. Moorhead III Warburg Pincus, LLC 466 Lexington Ave., 11th Floor New York, NY 10017		37,500

Harold L. Zuber, Jr. Telefex, Inc. 155 South Limerick Road Limerick, PA 19468		161,700

Annex A

FORM OF IRREVOCABLE PROXY

By its execution hereof, and in order to secure its obligations under the Voting Agreement (the “Agreement”) of even date herewith among Ventas, Inc, a Delaware corporation (“Parent”), and the individuals and entities listed as “Shareholders” on the signature pages thereof, (each a “Shareholder” and, collectively, the “Shareholders”), the undersigned Shareholder hereby irrevocably constitutes and appoints Parent and its successors and assigns, with full power of substitution and resubstitution, from the date hereof to the termination of the Agreement, as such Shareholder’s true and lawful attorney and proxy (its “Proxy”), for and in such Shareholder’s name, place and stead to vote all of the Shares of such Shareholder as such Shareholder’s Proxy at every annual, special or adjourned meeting of shareholders of Company, and to sign on behalf of such Shareholder (as a Shareholder of Company) any ballot, proxy, consent, certificate or other document relating to Company that law permits or requires, in a manner consistent with Section 1(a) of the Agreement. This Proxy is coupled with interest and Shareholder intends this Proxy to be irrevocable to the fullest extent permitted by law. Shareholder hereby revokes any proxy previously granted by such Shareholder with respect to such Shareholder’s Shares. Capitalized terms used but not defined herein shall have the meaning set forth in the Agreement. Shareholder shall perform such further acts and execute such further documents and instruments as may reasonably be required to vest in Parent or any of its nominees, the power to carry out and give effect to the provisions of this Proxy. The Proxy at the earliest to occur of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with the terms thereof, or (iii) the mutual consent of the parties to the Voting Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this day of , 2003.

SHAREHOLDER:

Name:

EX-3 4 dex3.htm UNITHOLDER PURCHASE AGREEMENT Unitholder Purchase Agreement

Exhibit 3

UNITHOLDER PURCHASE AGREEMENT

This Unitholder Purchase Agreement (this “Agreement”) is entered into as of this 19th day of November, 2003, between Ventas, Inc., a Delaware corporation (“Purchaser”), ElderTrust Operating Limited Partnership, a Delaware limited partnership (“EOP”), ElderTrust, a Maryland real estate investment trust (the “General Partner”), and the Seller identified on the signature pages hereof (“Seller”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Merger Agreement (as hereinafter defined).

R E C I T A L S :

WHEREAS, as of the date hereof, Seller owns beneficially and of record the number and class of limited partnership interests (the “EOP Units”) in EOP identified on Schedule I hereto, representing all of Seller’s direct or indirect ownership interest in EOP;

WHEREAS, concurrently with the execution of this Agreement, Purchaser, Ventas Sub, LLC, a Delaware limited liability company which is a wholly owned subsidiary of Ventas Sub, LLC (“Merger Sub”), and the General Partner, will enter into an Agreement and Plan of Merger, dated as of the date hereof (as amended and supplemented after the date hereof in accordance with its terms, the “Merger Agreement”) pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the General Partner (the “Merger”);

WHEREAS, as a condition to the willingness of the General Partner, Purchaser and Merger Sub to enter into the Merger Agreement, Purchaser has requested that Seller sell to Purchaser all of the EOP Units owned by Seller; and

WHEREAS, Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller all of Seller’s right, title and interest in and to the EOP Units, upon the terms and conditions set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Purchaser, Seller, EOP and the Partnership agree as follows:

1. PURCHASE AND SALE OF SECURITIES.

(a) Subject to the terms and conditions hereof, contemporaneously with the consummation of the Merger, Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, all of Seller’s right, title and interest in and to the EOP Units, for a consideration per EOP Unit equal to the product of (i) the number of shares of Company Common Stock as such Seller would have been entitled to receive had he converted such EOP Unit for shares of Company Common Stock immediately prior to the Merger multiplied by (ii) the Merger Consideration (such product, the “Purchase Price”). Upon receipt of such Purchase Price, Seller shall have no

further claim or right, in its capacity as a limited partner of Seller, in respect of Seller’s EOP Units under the Second Amended and Restated Agreement of Limited Partnership, as heretofore and hereafter amended or supplemented in accordance with its terms (the “EOP Partnership Agreement”), of EOP, all of which shall be deemed to have been sold, assigned and transferred to Purchaser as of the closing of the purchase and sale of Seller’s EOP Units. Without limiting the foregoing, such rights shall include all rights to acquire additional Class A Units or other Partnership Units or Partnership Interests (as those terms are defined in the EOP Partnership Agreement) under the EOP Partnership Agreement. In the event the Effective Time does not occur for any reason, Purchaser shall have no further obligation to Seller under this Section 1(a) and, without limiting the generality of the foregoing, Purchaser shall have no obligation to pay the Purchase Price to Seller in the event the Effective Time does not occur.

(b) Such sales and purchases shall be effected by Seller delivering to Purchaser duly executed certificates or other instruments evidencing the EOP Units, together with appropriate instruments of transfer attached (duly endorsed or otherwise in form sufficient for transfer), against delivery by Purchaser to Seller of the Purchase Price. EOP and the General Partner consent to this Agreement and the transactions contemplated hereby and agree to record the transfer of the EOP Units to the Purchaser on the date of the closing of the purchases and sales referred to above and to admit the Purchaser as a Substituted Limited Partner (as defined in the EOP Partnership Agreement) as of such date.

(c) The Purchase Price shall be paid by wire transfer of immediately available funds to such account or accounts as Seller shall designate in writing.

(d) The closing of the purchases and sales referred to above shall take place at the offices of Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York 10019 on the date hereof.

2. REPRESENTATIONS AND WARRANTIES OF SELLER.

Seller represents and warrants to Purchaser that:

(a) Seller has all legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.

(b) Seller is the beneficial owner of the EOP Units set forth opposite the name of Seller on Schedule I hereto and will continue to be the beneficial owner of such EOP Units until the termination of this Agreement. Such EOP Units are exchangeable (through redemption and election to receive shares of Company Common Stock under the terms of the EOP Partnership Agreement) into the number of shares of Company Common Stock set forth on Schedule I hereto. Except as granted by this Agreement, the EOP Partnership Agreement and federal securities laws, Seller owns, and at the closing date hereunder will own, all of such EOP Units free and clear of all security interests, liens, claims, pledges, options, rights of first refusal,

agreements, limitations on voting rights, restrictions, charges, proxies and other encumbrances of any nature, and as of the Effective Time shall have no claim against EOP with respect to any of such EOP Units held by Seller.

(d) This Agreement constitutes the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally, by general equity principles, (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) The execution and delivery of this Agreement by Seller does not, and the performance of this Agreement by Seller will not, (i) conflict with or violate any trust agreement or other similar documents relating to any trust of which Seller is trustee, (ii) conflict with or violate any law applicable to Seller or by which Seller or any of Seller’s properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any assets of Seller, including, without limitation, Seller’s EOP Units, pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which Seller is a party or by which Seller or any of Seller’s assets is bound or affected.

(f) Seller agrees to execute and deliver any additional documents necessary, in the reasonable opinion of Purchaser, to carry out the purpose and intent of this Agreement.

(g) Other than the EOP Partnership Agreement, neither Seller nor any of its affiliates or related persons is a party to, or a beneficiary of, any agreement with, or undertaking from, EOP or the General Partner (or their respective affiliates) (“Partnership Entities”) under which any such person is entitled to any rights (including, without limitation, indemnity rights) of any kind whatsoever in respect of the operation of the business of any Partnership Entity, the ownership or disposition of any property by any Partnership Entity or the sale or liquidation of any Partnership Entity or the issuance or transfer of equity interests therein.

(h) Seller understands and acknowledges that Purchaser is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by Seller.

3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.

Purchaser represents and warrants to Seller that:

(a) Purchaser has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder. Purchaser has authorized the execution,

delivery and performance of this Agreement, and each of the transactions contemplated hereby. No other action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms.

(b) No consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over Purchaser and no consent, approval or authorization of any other person is required for the execution, delivery or performance by Purchaser of its obligations hereunder, including without limitation the purchase of the EOP Units.

(c) Neither the purchase of the EOP Units nor the performance of Purchaser’s obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the certificate of incorporation, bylaws or other organizational documents of Purchaser, (ii) any decree, judgment, order, law, treaty, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over Purchaser, as applicable, or any of its assets or properties or (iii) the terms of any material agreement to which Purchaser is a party or to which any of Purchaser’s properties are subject.

4. FURTHER ASSURANCES. From and after the date hereof, Seller shall execute all certificates, instruments, documents or agreements and shall take any other action which it is reasonably requested to execute or take to further effectuate the transactions contemplated hereby. Without limiting the generality of the foregoing, Seller further agrees that prior to the closing of the purchase and sale hereunder, it will give any vote, approval, consent or waiver that may be required under the terms of the EOP Partnership Agreement in order to implement the Merger and the transactions contemplated by this Agreement and the Merger Agreement, including, without limitation, any waiver of notice with respect to the Merger under Section 8.5.C of the EOP Partnership Agreement. Seller agrees that it will, upon request by Purchaser, furnish written confirmation, in form and substance reasonably acceptable to Purchaser, of any such vote, approval, consent or waiver under the EOP Partnership Agreement.

5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective agreements, representations, warranties and other statements made by or on behalf each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive delivery of any payment for the EOP Units.

6. TERMINATION. This Agreement shall terminate automatically upon the earlier to occur of (i) the termination of the Merger Agreement for any reason whatsoever and (ii) the mutual consent of the parties hereto; provided that no such termination shall relieve any party of liability for a breach hereof prior to termination.

7. EXPENSES. Each party hereto shall be responsible for its own fees and expenses in connection with this Agreement.

8. INTERPRETATION OF THIS AGREEMENT.

(b) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of Law (including by merger or consolidation) or otherwise by Seller without the prior written consent of Purchaser. Any assignment in violation of the preceding sentence shall be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and assigns. Purchaser may assign its rights hereunder to any entity in which it directly or indirectly owns a majority of the voting interests.

(d) All notices, requests, claims, demands and other communications to be given under this Agreement shall be in writing and shall be deemed given (i) three (3) business days following sending by registered or certified mail, postage prepaid, (ii) when sent if sent by facsimile; provided, however, that the fax is promptly confirmed by telephone confirmation thereof, (iii) when delivered, if delivered personally to the intended recipient, and (iv) one business day following sending by overnight delivery via a national courier service, and in each case, addressed to a party at the following address for such party:

If to Seller:		To the address for Seller set forth on Schedule I hereto

If to EOP or the the General Partner		ElderTrust
		Little Falls Centre One

		2711 Centerville Road, Suite 108
		Attention: Michael Walker
		Facsimile: (302) 993-1023

If to Purchaser:		Ventas, Inc.
		4360 Brownsboro Road
		Suite 115
		Louisville, KY 40207-1642
		Attention: T. Richard Riney, Esq.
		Facsimile: (502) 357-9050

With a copy to:		Willkie Farr & Gallagher LLP
		787 Seventh Avenue
		New York, NY 10019
		Attention: Thomas M. Cerabino, Esq.
		Facsimile: (212) 728-8111

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

(e) This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to the choice of law provisions thereof.

(f) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

(g) The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (a) if necessary, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

(h) The parties agree that irreparable damage would occur in the event that any of the provisions of this

Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other remedies at law or in equity, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and specific performance of the terms and provisions of this Agreement, subject to the discretion of the court before which any proceeding for such remedy may be brought.

(l) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

VENTAS, INC.

By:		/s/ T. Richard Riney

Name: T. Richard Riney
Title: Executive Vice President and General Counsel

ELDERTRUST OPERATING LIMITED PARTNERSHIP

By:		ElderTrust, its General Partner

By:		/s/ Michael R. Walker

Name: Michael R. Walker
Title: Acting President, Chief Executive Officer and Chief Financial Officer

ELDERTRUST

By:		/s/ Michael R. Walker
Name: Michael R. Walker
Title: Acting President, Chief Executive Officer and Chief Financial Officer

SELLER:

/s/ Michael R. Walker
Name: Michael R. Walker

Schedule I

SELLER

Name and Address of Seller

Number of EOP Units
Beneficially Owned (by Class)

Number of Shares of Company

Common Stock Exchangeable for

EOP Units Held by Seller

Michael R. Walker

2711 Centerville Road, Suite 108

Wilmington, DE 19808

62,566

EX-4 5 dex4.htm UNITHOLDER PURCHASE AGREEMENT Unitholder Purchase Agreement

Exhibit 4

UNITHOLDER PURCHASE AGREEMENT

R E C I T A L S :

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Purchaser, Seller, EOP and the Partnership agree as follows:

1. PURCHASE AND SALE OF SECURITIES.

(c) The Purchase Price shall be paid by wire transfer of immediately available funds to such account or accounts as Seller shall designate in writing.

(d) The closing of the purchases and sales referred to above shall take place at the offices of Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York 10019 on the date hereof.

2. REPRESENTATIONS AND WARRANTIES OF SELLER.

Seller represents and warrants to Purchaser that:

(a) Seller has all legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.

(f) Seller agrees to execute and deliver any additional documents necessary, in the reasonable opinion of Purchaser, to carry out the purpose and intent of this Agreement.

(h) Seller understands and acknowledges that Purchaser is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by Seller.

3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.

Purchaser represents and warrants to Seller that:

(a) Purchaser has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder. Purchaser has authorized the execution,

7. EXPENSES. Each party hereto shall be responsible for its own fees and expenses in connection with this Agreement.

8. INTERPRETATION OF THIS AGREEMENT.

If to Seller:		To the address for Seller set forth on Schedule I hereto

If to EOP or the the General Partner		ElderTrust
		Little Falls Centre One

		2711 Centerville Road, Suite 108
		Attention: Michael Walker
		Facsimile: (302) 993-1023

If to Purchaser:		Ventas, Inc.
		4360 Brownsboro Road
		Suite 115
		Louisville, KY 40207-1642
		Attention: T. Richard Riney, Esq.
		Facsimile: (502) 357-9050

With a copy to:		Willkie Farr & Gallagher LLP
		787 Seventh Avenue
		New York, NY 10019
		Attention: Thomas M. Cerabino, Esq.
		Facsimile: (212) 728-8111

or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above.

(e) This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to the choice of law provisions thereof.

(f) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

(g) The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (a) if necessary, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

(h) The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other remedies at law or in equity, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and specific performance of the terms and provisions of this

Agreement, subject to the discretion of the court before which any proceeding for such remedy may be brought.

(l) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

VENTAS, INC.

By:		/s/ T. Richard Riney

Name: T. Richard Riney
Title: Executive Vice President and General Counsel

ELDERTRUST OPERATING LIMITED PARTNERSHIP

By:		ElderTrust, its General Partner

By:		/s/ Michael R. Walker

Name: Michael R. Walker
Title: Acting President, Chief Executive Officer and Chief Financial Officer

ELDERTRUST

By:		/s/ Michael R. Walker
Name: Michael R. Walker
Title: Acting President, Chief Executive Officer and Chief Financial Officer

SELLER:

SENIOR LIFECHOICE CORP.

By:		/s/ Michael R. Walker
Name: Michael R. Walker
Title: President

Schedule I

SELLER

Name and Address of Seller

Number of EOP Units

Beneficially Owned (by Class)

Number of Shares of Company

Common Stock Exchangeable for

EOP Units Held by Seller

Senior LifeChoice Corp.

228 N. Garfield St.,

Kennett Square, PA 19348

165,850

EX-5 6 dex5.htm AGREEMENT OF CLASS C (LIHTC) UNIT RIGHTS MODIFICATION Agreement of Class C (LIHTC) Unit Rights Modification

Exhibit 5

ELDERTRUST OPERATING LIMITED PARTNERSHIP

AGREEMENT OF CLASS C (LIHTC) UNIT RIGHTS MODIFICATION

This Agreement of Class C (LIHTC) Unit Rights Modification (the “Agreement”) is dated November 19, 2003, and shall be effective as of the Effective Time (as defined in the Merger Agreement) (the “Effective Date”) by and among ElderTrust Operating Limited Partnership, a Delaware limited partnership (the “Partnership”), Norland Plastics Company, a Delaware corporation (the “Class C Unit Holder”), ElderTrust, a Maryland real estate investment trust and the general partner of the Partnership (“ElderTrust”), and Ventas, Inc., a Delaware corporation (“Ventas”).

BACKGROUND:

WHEREAS, the Partnership was formed on July 30, 1997 and in May of 1998 the Partnership adopted a Second Amended and Restated Agreement of Limited Partnership (as amended from time to time, the “Partnership Agreement”) which amended and restated in its entirety all prior agreements of limited partnership of the Partnership;

WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the Partnership adopted a Certificate of Designation (the “Class C Unit Designation”) effective December 1, 1998 establishing a class of Partnership equity designated as “Class C (LIHTC) Units” and setting forth certain rights and obligations of the Partnership and any holders of Class C (LIHTC) Units;

WHEREAS, the Class C Unit Holder acquired 31,455 Class C (LIHTC) Units pursuant to a Member Interest Purchase and Contribution Agreement dated April 29, 1999 and intended to be effective as of December 1, 1998 by and among the Class C Unit Holder, ElderTrust, and the Partnership (the “Class C Unit Issuance Agreement”);

WHEREAS, currently and as of the Effective Time, the Class C Unit Holder is and shall be the sole record and equitable owner of Class C (LIHTC) Units;

WHEREAS, pursuant to a certain Agreement and Plan of Merger entered into as of November 19, 2003 by and between ElderTrust, Ventas, and MergerSub (the “Merger Agreement”) and Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, a subsidiary of Ventas (“Merger Sub”) and ElderTrust shall merge (the “Merger”), with ElderTrust surviving the Merger;

WHEREAS, in order to facilitate the Merger, the parties hereto wish to modify certain rights and obligations set forth in the Partnership Agreement, Class C Unit Designation, and the Member Interest Purchase and Contribution Agreement, dated April 29, 1999, among the Class C Unit Holder, the Operating Partnership and the Company (the “Purchase Agreement”, and collectively with the Partnership Agreement and the Class C Unit Designation, the “Class C Unit Agreements”) as set forth below and intend for this Agreement to amend and modify the Class C Unit Agreements in accordance with the terms set forth below, and to the extent the application

of the terms of this Agreement conflict with the Class C Unit Agreements (prior to the amendment hereof), the parties hereto intend for the terms of this Agreement to take precedence over and supersede the terms of the Class C Unit Agreements.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto agree as follows:

1. Class C Unit Modifications

a. For the purposes of the Partnership Agreement, the numeral “1.0” used in the term “Conversion Factor” shall be amended and replaced with the product of 1 * (X / Y) where:

(1) the variable X shall mean the Merger Consideration (as defined in the Merger Agreement) payable for each share of ElderTrust common stock surrendered pursuant to the Merger; and

(2) the variable Y shall mean the average of the daily market price for Ventas common stock for the ten consecutive trading days immediately preceding the Effective Time (as defined in the Merger Agreement).

b. (1) In lieu of any distributions under Article V of the Partnership Agreement, Class C Unit Holders shall receive, at the same time that dividends are paid on Ventas common stock, on a per Unit basis, an amount equal to the product of (x) the dividend paid on a share of Ventas common stock and (y) the Conversion Factor, provided that no distribution shall be made to Class C Unit Holders in respect of a dividend paid by Ventas in shares of its stock if such dividend results in an adjustment of the Conversion Factor.

(2) Upon dissolution and liquidation of the Partnership, the amount distributable to a Class C Unit Holder under Section 13.2 of the Partnership Agreement shall in no event exceed the amount such Unit Holder would have received if the Partnership had redeemed such Unit Holder’s Units pursuant to Section 8.6 of the Partnership Agreement on the date of receipt of such distribution.

c. (1) The Class C Unit Holders agree that the provisions of this Agreement, including the modifications to the terms of the Class C Units, will in no event be regarded as a Tax Detriment Acceleration Event. Neither the Partnership nor Ventas makes any representation to the Class C Units Holders as to the tax treatment of holding the Class C Units or the tax effect of this Agreement.

(2) The parties confirm that Section 5(d) of the Purchase Agreement remains in effect, and that neither the Partnership nor the Company has waived any of its rights under that agreement; provided, however, that this Agreement shall supersede and replace the third and fourth sentences of such Section 5(d).

2. Class C Unit Distribution Modification

-2-

For purposes of Article V of the Partnership Agreement, the number of Class C Units deemed to be outstanding as of a certain date (the “Converted Number of Class C Units”) shall be calculated by multiplying the Conversion Factor by the number of Class C Units actually outstanding as of such date. The Converted Number of Class C Units shall be used in replacement of the actual number of Class C Units outstanding for purposes of Article V of the Partnership Agreement, including in the definitions of Partnership Units and Percentage Interest used in calculating the distributions of Available Cash payable to the Class C Unit Holder pursuant to Article V.

2. Class C Unit Voting Rights / Tax Covenants

a. The Class C Unit Agreements are hereby amended to eliminate all voting or approval rights of the Class C Unit Holder other than, except as otherwise provided herein, the rights set forth in Section 14.1 D(i), (ii), (iv), (v) and (vi) of the Partnership Agreement, as modified to include to include a new clause (vii) providing that the Partnership Agreement shall not be amended without the consent of the Class C Unit Holder if such amendment would cause a Tax Detriment Acceleration Event as to the Class C Unit Holder, unless the applicable Tax Detriment Acceleration Event Penalty Amount is paid to the Class C Unit Holder.

b. Until the Tax Protection Termination Date, without the consent of the Class C Unit Holder, the Partnership shall not amend the Class C Unit Designation to eliminate the special allocation rights of the Class C Holder.

c. The Partnership, ElderTrust, or Ventas shall not cause a Tax Detriment Acceleration Event unless the applicable Tax Detriment Acceleration Event Penalty Amount is paid to the Class C Unit Holder.

d. For the Purpose of this Agreement, “Tax Detriment Acceleration Event” shall mean any action taken by the Partnership, ElderTrust, or Ventas without the consent of the Class C Unit Holder, which prior to December 31, 2013 (the “Tax Protection Termination Date”) causes the recognition of federal, state, or local income tax liability by the Class C Unit Holder i) attributable to the historical special allocations of Partnership depreciation deductions to the Class C Unit Holder, or ii) which constitutes a “credit recapture amount” within the meaning of Section 42(j) of the Internal Revenue Code of 1986, as amended (the “Code”). Tax Detriment Acceleration Events shall mean:

(1) A sale, transfer, or other disposition of the NDNE Properties (as defined by the Class C Unit Issuance Agreement) before the Tax Protection Termination Date which results in: i) a special allocation of taxable income to the Class C Unit Holder pursuant to Section 2(iii) of the Class C Unit Issuance Agreement; ii) a special allocation of taxable income to the Class C Unit Holder pursuant to Section 1. A. (Minimum Gain Chargeback) of Exhibit C to the Partnership Agreement; or iii) a tax liability to the Class C Unit Holder which constitutes a “credit recapture amount” within the meaning of Section 42(j) of the Code;

(2) A termination of, or modification to, the terms of the Class C Unit Holder Capital Account Deficit Restoration Obligation set forth in Section 4 of the Class C Unit Issuance Agreement before the Tax Protection Termination Date which results in the special

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allocation of taxable income to the Class C Unit holder pursuant to Section 1. B. (Qualified Income Offset) or Section 1. D. (Gross Income Allocation) of Exhibit C to the Partnership Agreement or results in the recognition of taxable income by the Class C Unit Holder pursuant to Section 752(b) of the Code;

(3) A change to the terms of, or the outstanding principal balances of, the Nonrecourse Liabilities (as defined by Treasury Regulation Section 1.752-1(a)(2)) of the Partnership before the Tax Protection Termination Date which results in a special allocation of taxable income to the Class C Unit Holder pursuant to Section 1. A. (Minimum Gain Chargeback) of Exhibit C to the Partnership Agreement; and

(4) A sale, disposition, or transfer by the Class C Unit Holder of all or a portion of its Class C Units before the Tax Protection Termination Date and forced or compelled by the Partnership, ElderTrust, or Ventas which results in the recognition of taxable income by the Class C Unit Holder pursuant to Section 752(d) of the Code or a tax liability to the Class C Unit Holder which constitutes a “credit recapture amount” within the meaning of Section 42(j) of the Code.

Notwithstanding the foregoing, the event described in clause (3) shall not constitute a Tax Detriment Acceleration Event to the extent that, at least 20 days prior to any event that would otherwise result in a Tax Detriment Acceleration Event, the Partnership offers the Class C Unit Holder the opportunity to provide “bottom guarantees” (or other arrangements such as indemnities that have similar effect to bottom guarantees) with respect to a sufficient amount of Partnership liabilities to avoid the special allocation of income described in clause (3) that would occur if such bottom guarantees or other arrangements are not been entered into; provided, however, that the property securing the liabilities with respect to which such opportunity is offered must have a fair market value, at the time such opportunity is offered, at least equal to (i) 333% of the aggregate amount of the applicable guarantee or other arrangement and (ii) 133% of the aggregate amount of all liabilities secured by such property.

3. Tax Detriment Acceleration Event Penalty Amount

a. In the event of a Tax Detriment Acceleration Event, the Partnership shall promptly pay to the Class C Unit Holder the applicable Tax Detriment Acceleration Event Penalty Amount.

b. For the Purpose of this Agreement, “Tax Detriment Acceleration Event Penalty Amount” shall mean the result of A – B where:

(1) the variable A shall mean the discounted present value of the Tax Detriment Amount, as of December 1, 1998, discounted for the period beginning December 1, 1998 and ending on the Tax Detriment Acceleration Event which created such Tax Detriment Amount computed using an annual discount rate of 23.10%; and

(2) the variable B shall mean the discounted present value of the actual federal, state, and local tax liability resulting to the Class C Unit Holder from a Tax Detriment Acceleration Event (the “Tax Detriment Amount”), as of December 1, 1998, discounted for the

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period beginning December 1, 1998 and ending on the Tax Protection Termination Date computed using an annual discount rate of 23.10%.

c. In the event of multiple Tax Detriment Acceleration Events, multiple Tax Detriment Amounts and Tax Detriment Acceleration Event Penalty Amounts shall be calculated.

4. Representations and Warranties of all Parties

Each party hereto represents and warrants to each other party hereto, as of the date hereof and as of the Effective Time, that:

a. It has full power and legal right to execute and deliver this Agreement and to perform its obligations hereunder. It has authorized the execution, delivery and performance of this Agreement, and each of the transactions contemplated hereby. No other action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Agreement shall constitute a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

b. No consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over such party and no consent, approval or authorization of any other person is required for the execution, delivery or performance by such party of its obligations hereunder.

c. The performance of its obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the organizational documents of such party, (ii) any decree, judgment, order, law, treaty, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over such party, as applicable, or any of its assets or properties or (iii) the terms of any material agreement to which such party is a party or to which any of such party’s properties are subject.

5. Additional Representations and Warranties of the Class C Unit Holder

The Class C Unit Holder makes the following additional representations and warranties to each other party hereto, as of the date hereof and as of the Effective Time:

a. The Class C Unit Holder is the sole record and beneficial owner of 31,455 Class C (LIHTC) Units and will continue to be the sole record and beneficial owner of such Class C (LIHTC) Units up to and including the Effective Time. Except as granted by the Class C Unit Agreements and federal securities laws, the Class C Unit Holder owns, and at the Effective Time will own, all of such Class C (LIHTC) Units free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, restrictions, charges, proxies and other encumbrances of any nature.

b. Other than the Class C Unit Agreements, neither the Class C Unit Holder nor any of its affiliates is a party to, or a beneficiary of, any agreement with, or undertaking from, the Partnership or ElderTrust or their respective affiliates (each, a “Partnership Entities”) under which any such person is entitled to any rights (including, without limitation, indemnity

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rights) of any kind whatsoever in respect of the operation of the business of any Partnership Entity, the ownership or disposition of any property by any Partnership Entity or the sale or liquidation of any Partnership Entity or the issuance or transfer of equity interests therein.

c. The Class C Unit Holder understands and acknowledges that Ventas is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by the Class C Unit Holder and the performance of the transactions contemplated hereby.

6. Further Assurances. From and after the date hereof, the Class C Unit Holder shall execute all certificates, instruments, documents or agreements and shall take any other action required to execute or take to further effectuate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Class C Unit Holder further agrees that prior to consummation of the Merger, it will give any vote, approval, consent or waiver that may be required under the terms of the Partnership Agreement in order to implement the Merger and the transactions contemplated by this Agreement and the Merger Agreement, including, without limitation, any waiver of notice with respect to the Merger under Section 8.5.C of the Partnership Agreement, and execution and delivery of any document or instrument reasonably requested by the Partnership to reflect the terms of this Agreement.

7. Survival of Representations and Warranties. The respective agreements, representations, warranties and other statements made by or on behalf each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive consummation of the transactions contemplated hereby.

8. Termination. This Agreement shall terminate automatically upon the earlier to occur of (i) the termination of the Merger Agreement prior to the Effective Time and (ii) the mutual consent of the parties hereto; provided that no such termination shall relieve any party of liability for a breach hereof prior to termination.

9. Interpretation of this Agreement

a. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement is not intended to confer upon any other person any rights or remedies hereunder. This Agreement may not be amended, modified or rescinded except by an instrument in writing signed by each of the parties hereto.

b. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of law (including by merger or consolidation) or otherwise by the Class C Unit Holder without the prior written consent of the other parties hereto. Any assignment in violation of the preceding sentence shall be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and assigns.

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c. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power, or remedy or to demand such compliance.

d. This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to the choice of law provisions thereof.

e. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

f. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (i) if necessary, a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

g. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other remedies at law or in equity, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and specific performance of the terms and provisions of this Agreement, subject to the discretion of the court before which any proceeding for such remedy may be brought.

h. The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and paragraph references are to the sections and paragraphs of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns.

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i. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

j. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.

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IN WITNESS WHEREOF, the Partnership, the Class C Unit Holder, ElderTrust, and Ventas have caused this Agreement to be signed by their respective officers thereunto duly authorized all as of the date first written above.

ELDERTRUST OPERATING LIMITED PARTNERSHIP

By:		/s/ Michael R. Walker
Name: Michael R. Walker
Title: Acting President, Chief Executive Office and Chief Financial Officer

NORLAND PLASTICS COMPANY

By:		/s/ Thomas M. Byrne
Name: Thomas M. Byrne
Title: Vice President and Treasurer

ELDERTRUST

By:		/s/ Michael R. Walker
Name: Michael R. Walker
Title: Acting President, Chief Executive Office and Chief Financial Officer

VENTAS, INC.

By:		/s/ T. Richard Riney
Name: T. Richard Riney
Title: Executive Vice President and General Counsel

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