EXHIBIT 4.2
SUPPLEMENTAL INDENTURE NO. 1
by and between
HEALTH CARE REIT, INC.
and
FIFTH THIRD BANK
As of September 6, 2002
SUPPLEMENTAL TO THE INDENTURE DATED AS OF SEPTEMBER 6, 2002
------------------------------------
HEALTH CARE REIT, INC.
8.0% Senior Notes due 2012
This SUPPLEMENTAL INDENTURE NO. 1 (this "Supplemental Indenture") is
made and entered into as of September 6, 2002 between HEALTH CARE REIT, INC., a
Delaware real estate investment trust (the "Company"), and FIFTH THIRD BANK, an
Ohio banking corporation, as Trustee (the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of September 6, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Base Indenture" and, together with this
Supplemental Indenture, as amended, supplemented or otherwise modified from time
to time, the "Indenture") to provide for the future issuance of the Company's
senior debt securities (the "Securities") to be issued from time to time in one
or more series; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a series of its Securities, to be
known as its 8.0% Senior Notes due 2012, the form and substance of such
Securities and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINED TERMS
Section 1.1 The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Base Indenture:
"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.
"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt.
"Capital Lease" means at any time any lease of property, real or
personal, which, in accordance with GAAP, would at such time be required to be
capitalized on a balance sheet of the lessee.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a Capital Lease
on a balance sheet of such Person under GAAP.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) less (i) all
current liabilities and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expenses and other like tangibles of the Company and its consolidated
Subsidiaries, all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries prepared in accordance with GAAP.
"DTC" means The Depository Trust Company located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
"EBITDA" means for any period, with respect to the Company on a
consolidated basis, determined in accordance with GAAP, the sum of net income
(or net loss) for such period PLUS, the sum of all amounts treated as expenses
for: (a) interest, (b) depreciation, (c) amortization and (d) all accrued taxes
on or measured by income to the extent included in the determination of such net
income (or net loss); provided, however, that net income (or net loss) shall be
computed without giving effect to extraordinary losses or gains.
"GAAP" means generally accepted accounting principles.
"Global Notes" has the meaning specified in Section 2.1(a) of this
Supplemental Indenture.
"Indebtedness" means with respect to any Person, all: (a) liabilities
or obligations, direct and contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities that in
accordance with such principles, would be set forth in a specific Dollar amount
on the liability side of such balance sheet, and Capitalized Lease Obligations
of such Person; (b) liabilities or obligations of others for which such Person
is directly or indirectly liable, by way of guaranty (whether by direct
guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to
purchase or advance or keep in funds or other agreement having the effect of a
guaranty) or otherwise; (c) liabilities or obligations secured by Liens on any
assets of such Person, whether or not such liabilities or obligations shall have
been assumed by it; and (d) liabilities or obligations of such Person, direct or
contingent, with respect to letters of credit issued for the account of such
Person and bankers acceptances created for such Person.
"Interest Coverage" means as of the last day of any fiscal quarter, the
quotient, expressed as a percentage (which may be in excess of 100%), determined
by dividing EBITDA by Interest Expense; all of the foregoing calculated by
reference to the immediately preceding four fiscal quarters of the Company
ending on such date of determination.
"Interest Expense" means for any period, on a combined basis, the sum
of all interest paid or payable (excluding unamortized debt issuance costs) on
all items of Indebtedness of the Company outstanding at any time during such
period.
"Interest Payment Date" with respect to the Notes is defined in Section
101 of the Base Indenture and Section 2.1(b) of this Supplemental Indenture.
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"Liabilities" means, at any date, the items shown as liabilities on the
balance sheet of the Company, except any items of deferred income, including
capital gains.
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, claim or charge of any kind (including any agreement to give
any of the foregoing), any conditional sale or other title retention agreement,
any lease in the nature of any of the foregoing, and the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment 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 such 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 accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor
thereof.
"Notes" means the Company's 8.0% Senior Notes due 2012, issued under
the Indenture.
"Regular Record Date" with respect to the Notes is defined in Section
101 of the Base Indenture and Section 2.1(b) of this Supplemental Indenture.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment 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.
"Senior Debt" means all Indebtedness other than Subordinated Debt.
"Standard & Poor's" means Standard & Poor's Rating Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereof.
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"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 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 Senior
Indenture, then such other reasonably comparable index that shall be designated
by the Company.
"Subordinated Debt" means any unsecured Indebtedness of the Company
which is issued or assumed pursuant to, or evidenced by, an indenture or other
instrument which contains provisions for the subordination of such other
Indebtedness (to which appropriate reference shall be made in the instruments
evidencing such other Indebtedness if not contained therein) to the Notes (and,
at the option of the Company, if so provided, to other Indebtedness of the
Company, either generally or as specifically designated).
"Subsidiary" means any corporation or other entity of which a majority
of (i) the voting power of the voting equity securities or (ii) the outstanding
equity interests of which are owned, directly or indirectly, by the Company or
one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors or similar functionaries, whether at all
times or only so long as no senior class of security has such voting power by
reason of any contingency.
"Tangible Net Worth" means the sum of capital surplus, earned surplus
and capital stock, minus deferred charges with GAAP consistently applied.
ARTICLE 2
TERMS OF THE NOTES
Section 2.1 Pursuant to Section 301 of the Indenture, the Notes shall
have the following terms and conditions:
(a) Title; Aggregate Principal Amount; Form of Notes. The Notes shall
be Registered Securities under the Indenture and shall be known as the Company's
"8.0% Senior Notes due 2012." The Notes will be limited to an aggregate
principal amount of $150,000,000, subject to the right of the Company to reopen
such series for issuances of additional securities of such series and except (i)
as provided in this Section and (ii) for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 of the
Indenture and except for any Securities which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered hereunder.
The Notes (together with the Trustee's certificate of authentication) shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated in
and made a part of this Supplemental Indenture.
The Notes will be issued in the form of one or more registered global
securities without coupons ("Global Notes") that will be deposited with, or on
behalf of, The Depository Trust Company ("DTC"), and registered in the name of
DTC's nominee, Cede & Co. Except under the
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circumstance described below, the Notes will not be issuable in definitive form.
Unless and until it is exchanged in whole or in part for the individual notes
represented thereby, a Global Note may not be transferred except as a whole by
DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC
or by DTC or any nominee of DTC to a successor depositary or any nominee of such
successor.
So long as DTC or its nominee is the registered owner of a Global Note,
DTC or such nominee, as the case may be, will be considered the sole owner or
holder of the Notes represented by such Global Note for all purposes under this
Supplemental Indenture. Except as described below, owners of beneficial interest
in Notes evidenced by a Global Note will not be entitled to have any of the
individual Notes represented by such Global Note registered in their names, will
not receive or be entitled to receive physical delivery of any such Notes in
definitive form and will not be considered the owners or holders thereof under
the Indenture or this Supplemental Indenture.
If DTC is at any time unwilling, unable or ineligible to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue individual Notes in exchange for the Global Note or
Global Notes representing such Notes. In addition, the Company may at any time
and in its sole discretion, subject to certain limitations set forth in the
Indenture, determine not to have any of such Notes represented by one or more
Global Notes and, in such event, will issue individual Notes in exchange for the
Global Note or Global Notes representing the Notes. Individual Notes so issued
will be issued in denominations of $1,000 and integral multiples thereof.
(b) Interest and Interest Rate. The Notes will bear interest at a rate
of 8.0% per annum, from September 12, 2002 (or, in the case of Notes issued upon
the reopening of this series of Notes, from the date designated by the Company
in connection with such reopening) or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semiannually on each March 12 and September 12, commencing March 12, 2003 (each
of which shall be an "Interest Payment Date"), to the Persons in whose names the
Notes are registered in the Security Register at the close of business on March
1 and September 1, as the case may be (whether or not a Business Day), next
preceding such Interest Payment Date (each, a "Regular Record Date").
(c) Principal Repayment; Currency. The stated maturity of the Notes is
September 12, 2012, provided, however, the Notes may be earlier redeemed at the
option of the Company as provided in paragraph (d) below. The principal of each
Note payable on its maturity date shall be paid against presentation and
surrender thereof at the Corporate Trust Office of the Trustee, located
initially at (i) The Bank of New York, One Wall Street, 3rd Floor, Window ▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) c/o Fifth Third Bank, Corporate Trust Services,
Fifth Third Center, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, in such
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public or private debts.
(d) Redemption at the Option of the Company. The Notes will be subject
to redemption at any time at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice to each Holder of Notes to
be redeemed at its address appearing in
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the Security Register, at a price equal to the sum of (i) the Outstanding
principal amount of the Notes being redeemed, plus accrued and unpaid interest
to but excluding the applicable Redemption Date, plus (ii) the Make-Whole
Amount, if any.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Company shall be directed
to it at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: President;
notices to the Trustee shall be directed to it at c/o Fifth Third Bank, Fifth
Third Center, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services, Re: Health Care REIT, Inc. 8.0% Senior Notes due 2012;
or as to either party, at such other address as shall be designated by such
party in a written notice to the other party.
(f) Global Note Legend. Each Global Note shall bear the following
legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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.
(g) Applicability of Discharge, Defeasance and Covenant Defeasance
Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in
Article Thirteen of the Indenture will apply to the Notes.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.1 Holders of the Notes shall have the benefit of the
following covenants, in addition to the covenants of the Company set forth in
Articles Eight and Ten of the Indenture:
(a) The Company will not pledge or otherwise subject to any Lien, any
property or assets of the Company or its Subsidiaries unless the Notes are
secured by such pledge or Lien equally and ratably with all other obligations
secured thereby so long as such obligations shall be so secured; provided,
however, that such restriction shall not apply to the following:
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(i) Liens securing obligations which do not in the aggregate
at any one time outstanding exceed 15% of Consolidated Net Tangible
Assets of the Company and its consolidated Subsidiaries;
(ii) Pledges or deposits by the Company or its Subsidiaries
under workers' compensation laws, unemployment insurance laws, social
security laws, or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness of the Company or its Subsidiaries), or leases to which
the Company or any of its Subsidiaries is a party, or deposits to
secure public or statutory obligations of the Company or its
Subsidiaries or deposits of cash or United States Government Bonds to
secure surety, appeal, performance or other similar bonds to which the
Company or any of its Subsidiaries is a party, or deposits as security
for contested taxes or import duties or for the payment of rent;
(iii) Liens imposed by law, such as carriers', warehousemen's,
materialmen's and mechanics' liens, or Liens arising out of judgments
or awards against the Company or any of its Subsidiaries which the
Company or such Subsidiary at the time shall be currently prosecuting
an appeal or proceeding for review;
(iv) Liens for taxes not yet subject to penalties for
non-payment and Liens for taxes the payment of which is being contested
in good faith and by appropriate proceedings;
(v) Minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of, others for rights of way, highways and
railroad crossings, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to
the use of real properties;
(vi) Liens incidental to the conduct of the business of the
Company or any Subsidiary or to the ownership of their respective
properties that were not incurred in connection with Indebtedness of
the Company or such Subsidiary, all of which Liens referred to in this
clause (vi) do not in the aggregate materially impair the value of the
properties to which they relate or materially impair their use in the
operation of the business taken as a whole of the Company and its
Subsidiaries, and as to all of the foregoing referenced in clauses (ii)
through (vi), only to the extent arising and continuing in the ordinary
course of business;
(vii) Purchase money Liens on property acquired or held by the
Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of such property; provided, however, that
(A) any such Lien attaches concurrently with or within 20 days after
the acquisition thereof, (B) such Lien attaches solely to the property
so acquired in such transaction, (C) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such
property and (D) the aggregate amount of all such Indebtedness on a
consolidated basis for the Company and its Subsidiaries shall not at
any time exceed $1,000,000;
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(viii) Liens existing on the Company's balance sheet as of
December 31, 2001; and
(ix) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (ii) through (viii)
inclusive; provided, however, that the amount of any and all
obligations and Indebtedness secured thereby shall not exceed the
amount thereof so secured immediately prior to the time of such
extension, renewal or replacement and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced (plus improvements on
such property).
(b) The Company will not create, assume, incur, or otherwise become
liable in respect of, any Senior Debt unless the aggregate outstanding principal
amount of Senior Debt of the Company will not, at the time of such creation,
assumption or incurrance and after giving effect thereto and to any concurrent
transactions, exceed the greater of (i) 150% of Capital Base or (ii) 225% of
Tangible New Worth.
(c) The Company will have or maintain, on a consolidated basis, as of
the last day of each of the Company's fiscal quarters, Interest Coverage of not
less than 150%.
(d) For purposes of this Section 3, Indebtedness and Debt shall be
deemed to be "incurred" by the Company or a Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
ARTICLE 4
ADDITIONAL EVENTS OF DEFAULT
Section 4.1 For purposes of this Supplemental Indenture and the Notes,
in addition to the Events of Default set forth in Section 501 of the Indenture,
each of the following also shall constitute an "Event of Default:"
(a) default in the payment of the principal of or any premium on the
Notes at Maturity;
(b) there shall occur a default under any bond, debenture, note or
other evidence of indebtedness of the Company, or under any mortgage, indenture
or other instrument of the Company (including a default with respect to
Securities of any series other than that series) under which there may be issued
or by which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding $10,000,000
of such indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto and shall have resulted in such indebtedness
in an aggregate principal amount exceeding $10,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise have
become
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due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days after
there shall have been given, by first class mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least a majority in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" under the Indenture; and
(c) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries in
an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgments, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days.
Section 4.2 Notwithstanding any provisions to the contrary in the
Indenture, upon the acceleration of the Notes in accordance with Section 502 of
the Indenture, the amount immediately due and payable in respect of the Notes
shall equal the Outstanding principal amount thereof, plus accrued and unpaid
interest, plus the Make-Whole Amount.
ARTICLE 5
EFFECTIVENESS
Section 5.1 This Supplemental Indenture shall be effective for all
purposes as of the date and time this Supplemental Indenture has been executed
and delivered by the Company and the Trustee in accordance with Article Nine of
the Indenture. As supplemented hereby, the Indenture is hereby confirmed as
being in full force and effect.
ARTICLE 6
NOTICE TO TRUSTEE
Section 6.1 Notwithstanding anything to the contrary in the Indenture
including, without limitation, Section 1102 thereof, in connection with the
redemption at the election of the Company of less than all the Notes, the
Company shall notify the Trustee of the establishment of a Redemption Date and
the principal amount of Notes to be redeemed at least 45 days prior to such
Redemption Date unless a shorter period shall be satisfactory to the Trustee.
ARTICLE 7
MISCELLANEOUS
Section 7.1 In the event any provision of this Supplemental Indenture
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof or any provision of the Indenture.
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Section 7.2 To the extent that any terms of this Supplemental Indenture
or the Notes are inconsistent with the terms of the Indenture, the terms of this
Supplemental Indenture or the Notes shall govern and supersede such inconsistent
terms.
Section 7.3 This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 7.4 This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be executed as an instrument under seal in their
respective corporate names as of the date first above written.
HEALTH CARE REIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
FIFTH THIRD BANK , as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President and
Senior Trust Officer
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EXHIBIT A
FORM OF NOTE
[Form of Face of Security]
HEALTH CARE REIT, INC.
8.0% Senior Notes due 2012
CUSIP No. 42217K AJ5 $150,000,000
Health Care REIT, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, the principal sum of One Hundred Fifty Million Dollars on
September 12, 2012, and to pay interest thereon from September 12, 2002 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 12 and September 12 in each year,
commencing March 12, 2003 at the rate of 8.0% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the March 1 or
September 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the City of New York, New York, or elsewhere as provided in
the Indenture, 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;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-1
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: HEALTH CARE REIT, INC.
By:
--------------------------- ---------------------------
Title:
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIFTH THIRD BANK
As Trustee
By:
---------------------------------
Authorized Officer
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[Form of Reverse of Security]
1. General. This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of September __, 2002
(as amended, supplemented or otherwise modified from time to time, the "Base
Indenture"), as supplemented by Supplemental Indenture No. 1, dated as of
September __, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Supplemental Indenture" and the Base Indenture, as supplemented by
such Supplemental Indenture, the "Indenture"), between the Company and Fifth
Third Bank, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Debt and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof.
2. Optional Redemption. The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, at any
time or from time to time, as a whole or in part, at the election of the
Company, at a redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed, (ii) accrued and unpaid interest to but excluding the
applicable Redemption Date and (iii) the Make-Whole Amount, if any.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
3. Defeasance. The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
5. Actions of Holders. The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
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such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
6. Payments Not Impaired. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
7. Denominations, Transfer, Exchange. As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000.00 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
8. Persons Deemed Owners. Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or
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not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
9. Defined Terms. All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
10. Governing Law. The Indenture and the note shall be deemed to be a
contract made under the laws of the State of Delaware, and for all purposes
shall be construed in accordance with the laws of said state.
11. CUSIP Number. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the correctness or accuracy of such CUSIP
numbers as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
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[ASSIGNMENT FORM]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- __________ Custodian _______
(Cust) (Minor)
Under Uniform Gifts to Minors Act
___________
(State)
Additional abbreviations may also be used though not in the above list.
_________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
_____________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
the within security and all rights thereunder, hereby irrevocably constituting
and appointing _____________________________________________________________
Attorney to transfer said security on the books of the Company with full power
of substitution in the premises.
Dated:____________________________ Signed:__________________________________
Notice: The signature to
this assignment must
correspond with the name as
it appears upon the face of
the within security in
every particular, without
alteration or enlargement
or any change whatever.
Signature Guarantee*:____________________
* Participant in a
recognized Signature
Guarantee Medallion Program
(or other signature
guarantor acceptable to the
Trustee).
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