LTC PROPERTIES, INC.
EXHIBIT 4.5
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of August 23, 1996 between
LTC Properties, Inc., a Maryland corporation (the "Company"), and Xxxxxx Trust
and Savings Bank, an Illinois state banking association (the "Trustee"), to that
certain Indenture, dated as of September 23, 1994, between the Company and the
Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which
provides for the issuance by the Company of the individual series of securities
thereunder, upon the Company and Trustee entering into a supplemental indenture
to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its fifth series of securities
thereunder, designated its 8.25% Convertible Subordinated Debentures due 2001
(the "Debentures"); and
WHEREAS, all acts necessary to constitute this Fifth Supplemental
Indenture as a valid, binding and legal obligation of the Company have been done
and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises
and of the covenants contained herein, it is hereby agreed as follows:
ARTICLE ONE
The Terms of the Debentures
In accordance with Sections 2.01 and 2.02 of the Indenture, the
Company will issue its series of Debentures in the aggregate principal amount of
$30,000,000. Each Debenture shall be substantially in the following form:
LTC PROPERTIES, INC.
8.25% Convertible Subordinated Debenture Due 2001
LTC PROPERTIES, INC., a Maryland corporation, promises to pay to
S P E C I M E N
or registered assigns, the principal sum of __________ Million Dollars, on
____________, 2001
Xxxxx 000000XX0
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: August 23, 1996
CERTIFICATE OF AUTHENTICATION
XXXXXX TRUST AND
SAVINGS BANK, as
Trustee, certifies that
this is one of the
Securities referred to
in the within mentioned
Indenture.
By:
--------------------
Authorized Signatory
2
SEAL
Dated: Xxxxxx 00, 0000
XXX PROPERTIES, INC.
By:
---------------------
Chairman of the Board
By:
---------------------
President
The rest of this page intentionally left blank.
3
LTC PROPERTIES, INC.
8.25% Convertible Debenture Due 2001
1. Interest. LTC Properties, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest semiannually on
January 1 and July 1 of each year beginning January 1, 1997. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from August 23, 1996; provided that, if there
is no existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the December 15 or June 15
next preceding the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by its check payable in such money. It may mail an
interest check to a Holder's registered address.
The final installment of principal of and premium, if any, on this
Security shall be payable only upon surrender of this Security at the office or
agency of the Trustee in the Borough of Manhattan, City and State of New York or
the City of Chicago, State of Illinois. Payments of principal of and premium, if
any, and interest on this Security shall be made at the office or agency of the
Trustee maintained in the Borough of Manhattan, City and State of New York or
the City of Chicago, State of Illinois, or, in the case of any such payments
other than the final payment of principal and premium, if any, at the Company's
option, by check mailed to the Person entitled thereto at such Person's address
last appearing on the Company's register.
3. Registrar and Agents. Initially, Xxxxxx Trust and Savings Bank
will act as Registrar, Paying Agent, Conversion Agent and agent for service of
notices and demands. The Company may change any Registrar, co-registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands without
notice. The Company or any of its Subsidiaries may act as Paying Agent or
Conversion Agent. The address of Xxxxxx Trust and Savings Bank is 000 Xxxx
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
4. Indenture; Limitations. The Company issued the Securities under
an Indenture dated as of September 23, 1994 (the "Basic Indenture") between the
Company and Xxxxxx Trust and Savings Bank (the "Trustee"), as supplemented by a
First Supplemental Indenture dated as of September 23, 1994, by a Second
Supplemental Indenture dated as of September 21, 1995, by a Third Supplemental
Indenture dated as of September 26, 1995, and by a Fourth Supplemental Indenture
dated as of February 5, 1996, each between the Company and the Trustee (as used
herein, the term "Indenture" means the Basic Indenture together with the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture). Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture. The
Securities are subject to all such terms, and the Holders of the Securities are
referred to the Indenture and said Act for a statement of them.
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The Securities are general unsecured obligations of the Company
limited to $30,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, make payments
in respect of its Capital Stock, merge or consolidate with any other Person and
sell, lease, transfer or otherwise dispose of its properties or assets.
5. Redemption by the Company. The Company may redeem the Securities,
in whole or from time to time in part, only as necessary for the Company to
continue to qualify for Federal tax treatment as a real estate investment trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code. These
Securities will be immediately redeemable by the Company to the extent, but only
to the extent, deemed sufficient by the Board of Directors to prevent the Holder
of such Securities or any other person having an interest therein (if the
Securities were thereupon converted) from being deemed to own shares of Capital
Stock in excess of the limits prescribed in Article Ninth of the Company's
Amended and Restated Articles of Incorporation. The Redemption Price shall be
equal to the lesser of (1) the price paid by the Holder in the transaction that
caused such Securities to exceed the amount necessary for the Company to
continue as a REIT (or, in the case of a devise or gift, the Market Price (as
such term is defined in Section 3.01(a) of the Indenture) at the time of such
devise or gift); (2) the Market Price on the date the Company mails the notice
of redemption required under Paragraph 6 below; and (3) 100% of the principal
amount thereof, in each case together with accrued interest.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days, but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
7. Conversion. A Holder of a Security may convert such Security into
shares of common stock of the Company at any time prior to maturity. The initial
conversion price is $17.25 per share, subject to adjustment in certain events.
To determine the number of shares issuable upon conversion of a Security, divide
the principal amount to be converted by the conversion price in effect on the
conversion date. The Company will deliver a check for any fractional share.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. No payment or adjustment is to be made on conversion
for interest accrued hereon or for dividends on shares of common stock issued on
conversion; provided, however, that if a Security is surrendered for conversion
after the record date for a payment of interest and on or before the interest
payment date, then, notwithstanding such conversion, the interest falling due to
such interest payment date will be paid to the Person in whose name the Security
is registered at the close of business on such record date and any Security
surrendered for conversion during the period from the close of business on any
regular record payment date to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. A Holder may convert a portion
of a Security if the portion is $1,000 principal amount or an integral multiple
thereof.
If the Company is a party to a consolidation or merger or a transfer
or lease of all or substantially all of its assets, the right to convert a
Security into shares of common stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another Person.
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NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, A HOLDER SHALL NOT
BE ENTITLED TO EFFECT THE CONVERSION OF, AND NEITHER THE COMPANY, THE CONVERSION
AGENT NOR THE REGISTRAR SHALL BE REQUIRED TO TAKE ANY STEPS TO EFFECT THE
CONVERSION OF, ANY SECURITY OR SECURITIES OF ANY SERIES IF SUCH CONVERSION, IN
THE GOOD FAITH OPINION OF THE BOARD OF DIRECTORS OR AN OFFICER, (A) MIGHT CAUSE
THE COMPANY TO FAIL TO COMPLY WITH ANY REQUIREMENT NECESSARY FOR THE CONTINUED
QUALIFICATION OF THE COMPANY AS A REIT UNDER THE CODE OR (B) WOULD RESULT IN A
SINGLE PERSON BEING AN OWNER (OR UPON CONVERSION OF ANY SECURITIES OR CONVERSION
OR EXCHANGE OF ANY OTHER SECURITIES OF THE COMPANY THEREUPON BEING AN OWNER) OF
MORE THAN 9.8% OF THE COMPANY'S OUTSTANDING COMMON STOCK (INCLUDING THE
COMPANY'S COMMON STOCK RESERVED FOR ISSUANCE UPON CONVERSION OF SECURITIES HELD
BY SUCH PERSON OR CONVERSION OR EXCHANGE OF OTHER SECURITIES OF THE COMPANY HELD
BY SUCH PERSON). ANY ATTEMPTED CONVERSION OF A SECURITY OR SECURITIES BY A
HOLDER IN VIOLATION OF THE LIMITS SET FORTH ABOVE SHALL BE NULL AND VOID AB
INITIO.
8. Subordination. This Security is subordinated to all Senior
Indebtedness of the Company. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holders of Securities. Any Securityholder by accepting this Security agrees
to the subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
9. Denominations, Transfer, Exchange. This Security is one of a duly
authorized issue of Securities of the Company designated as its 8.25%
Convertible Subordinated Debentures due 2001 limited in aggregate principal
amount to $30,000,000. The Securities are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. A
Holder may register the transfer of or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption or
register the transfer of or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed.
Neither the Company nor the Registrar shall be required to register
the transfer of any Securities if such transfer, in the good faith opinion of
the Board of Directors or an Officer, (a) might cause the Company to fail to
comply with any requirement necessary for the continued qualification of the
Company as a REIT under the Code or (b) would result in a single person being an
Owner (or upon conversion of any Securities or conversion or exchange of any
other securities of the Company thereupon being an Owner) of more than 9.8% of
the Company's outstanding common stock (including the Company's common stock
reserved for issuance upon conversion of Securities held by such person or
conversion or exchange of other securities of the Company held by such person).
The Company shall advise the Registrar in writing promptly of any such
determination by the Board of Directors or an Officer with respect to any
Security, identifying such Security by Holder and other appropriate method, and
shall instruct the Registrar not to register the transfer of such Security. The
Registrar shall not be liable to the Company, Holders of Securities or any other
persons for transfers of such Securities effected
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prior to its receipt of such written instructions from the Company and the
Company shall indemnify the Registrar for all claims, costs and expenses
incurred by it in connection with refusing to transfer Securities as instructed
by the Company.
10. Persons Deemed Owners. The registered Holder of a Security may
be treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest on any Securities remains unclaimed for three years, the Trustee and
the Paying Agent will pay the money back to the Company at its request. After
that, Holders may look only to the Company for payment.
12. Discharge Prior to Redemption or Maturity. The Indenture will be
discharged and canceled except for certain sections thereof upon payment of all
the Securities, or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment or redemption.
13. Amendment and Waiver. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Securityholder, the Company may amend the Indenture or the
Securities to, among other things, provide for uncertificated Securities, to
establish another series of securities as permitted by the Indenture, to cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely, affect the rights of any Securityholder.
14. Successors. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
15. Defaults and Remedies. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power with respect to the Securities. The Company is required to
file periodic reports with the Trustee as to the absence of any Default or Event
of Default.
16. Trustee Dealings with the Company. Xxxxxx Trust and Savings
Bank, the Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee.
17. No Recourse Against Others. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by
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accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. It also will furnish the text of
this Security in larger type. Requests may be made to: LTC Properties, Inc., 000
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: President.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
========================================================
========================================================
..............................................................................
..............................................................................
..............................................................................
..............................................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint ......................................................
..........................................................................agent
to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
================================================================================
Date:.........................................................................
Your signature:...............................................................
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:..........................................................
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CONVERSION NOTICE
To convert this Security into shares of common stock of the Company, check the
box:
=======
=======
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
====================================
$
====================================
If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
====================================================
====================================================
..............................................................................
..............................................................................
..............................................................................
..............................................................................
(Print or type other person's name, address and zip code)
================================================================================
Date:.........................................................................
Your Signature:...............................................................
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed By:......................................................
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IN WITNESS WHEREOF, the Parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, all as of the date first written
above,
LTC PROPERTIES, INC.
By: /s/ Xxxxxxx XxXxxxx III
-------------------------------------
Name: Xxxxxxx XxXxxxx III
Title: President and Chief Operating
Officer
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By: /s/ X. Xxxxxxxxx
-------------------------------------
Authorized Signatory
