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Exhibit 4.2
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 18, 1999
BETWEEN
HEALTH CARE REIT, INC.
AND
FIFTH THIRD BANK
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HEALTH CARE REIT, INC.
Issuer
to
FIFTH THIRD BANK
Trustee
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Supplemental Indenture No. 3
Dated as of March 18, 1999
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$50,000,000
8.17% Notes due 2006
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SUPPLEMENTAL INDENTURE NO. 3, dated as of March 18, 1999 (the
"Supplemental Indenture"), between HEALTH CARE REIT, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), and THE FIFTH THIRD BANK, an Ohio banking corporation, duly
organized and existing under the laws of the State of Ohio, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture, dated
as of April 17, 1997 (the "Senior Indenture"), a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 33-64877) and incorporated by reference as an exhibit to the
Company's Registration Statement on Form S-3 (Registration No. 333-43177)
providing for the issuance from time to time of Debt Securities of the Company
(the "Securities").
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series
of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of any series thereof, as follows:
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ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the State of
Ohio are authorized or required by law, regulation or executive order 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.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000 and, for purposes of the Place of Payment
provisions of Sections 305 and 1002 of the Senior Indenture, is located at Chase
Bank, Four New York Plaza, Ground Floor/Receiving Window, Xxx Xxxx, Xxx Xxxx
00000.
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"DTC" means The Depository Trust Company located at 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000.
"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.
"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.
"Liabilities" means, at any date, the items shown as liabilities on the
balance sheet of the Company except any item 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.
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"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.
"Notes" has the meaning specified in Section 2.1 hereof.
"Person" means an individual, partnership, corporation, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"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.
"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).
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"Tangible Net Worth" means the sum of capital surplus, earned surplus
and capital stock, minus deferred charges with GAAP consistently applied.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be one series of Securities designated the "8.17% Notes due
2006" (the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$50,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 306, 906 and 1304 of the Senior
Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.
The Notes will bear interest at a rate of 8.17% per annum. Interest
will accrue from March 18, 1999 or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semi-annually in arrears on March 15 and September 15 of each year, commencing
September 15, 1999 (each, an "Interest Payment Date"), to the Person in whose
name such Note is registered at the close of business on March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest will be computed
on the basis of a 360-day year comprised of twelve 30-day months. The interest
so payable on any Note which is not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the Person in whose
name such Note is registered on the relevant Regular Record Date, and such
defaulted interest shall instead be payable to the Person in whose name such
Note is registered on the Special Record Date or other specified date determined
in accordance with the Senior Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be.
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The Notes will mature on March 15, 2006.
SECTION 2.4. Covenants of the Company.
(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:
(i) Liens securing obligations which do not in the aggregate
at any one time outstanding exceed 10% 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;
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(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;
(viii) Liens existing on the Company's balance sheet as of
December 31, 1996; 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 quarter, Interest Coverage of not
less than 150%.
(d) For purposes of this Section 2.4, 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.
SECTION 2.5. Optional Redemption.
(a) The Notes may be redeemed at any time at the option of the Company,
in whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount, if any, with respect to the Notes (or portion
thereof).
(b) If notice has been given pursuant to Section 1104 of the Senior
Indenture and funds for the redemption of any Notes (or any portion thereof)
called for redemption shall have been made available on the Redemption Date,
such Notes (or any portion thereof) will cease to bear interest on the
Redemption Date specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price.
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(c) The Company will notify the Trustee at least 30 days prior to
giving notice of redemption (or such shorter period as is satisfactory to the
Trustee) of the aggregate principal amount of such Notes to be redeemed and the
Redemption Date. If less than all of the Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem fair and appropriate, the Notes to
be redeemed in whole or in part.
SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Senior Indenture may be served shall be in (i) the Borough of
Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be Chase Bank, Four New York Plaza, Ground
Floor/Receiving Window, Xxx Xxxx, Xxx Xxxx 00000 and (ii) the City of
Cincinnati, Ohio, and the office or agency for such purpose shall initially be
located at c/o Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the Notes will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, the City of New York (which shall initially be an office or agency
of the Trustee), 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, payments of principal and
interest on the Notes (other than payments of principal and interest due at
Maturity) may be made (a) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (b) by wire
transfer to an account maintained by the Person entitled thereto located inside
the United States.
SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in Dollars.
SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered form
as Registered Securities, without coupons. The Notes shall be issued in the form
of one or more permanent Global Securities. The depositary for the Notes shall
be DTC. The Notes shall not be issuable in definitive form except as provided in
Section 305 of the Senior Indenture.
SECTION 2.10. Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
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SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the
Notes.
SECTION 2.12. Defeasance.
(a) The provisions of Sections 1402 and 1403 of the Senior Indenture,
together with the other provisions of Article XIV of the Senior Indenture, shall
be applicable to the Notes. The provisions of Section 1403 of the Senior
Indenture shall apply to the covenants set forth in Section 2.4 of this
Supplemental Indenture and to those covenants specified in Section 1403 of the
Senior Indenture.
(b) The Company, at its option (i) will be discharged from any and all
obligations in respect to the Notes (except for certain obligations to register
the transfer or exchange of the Notes, to replace destroyed, stolen, lost or
mutilated Notes, and to maintain an office or agency in respect of the Notes and
hold moneys for payment in trust) or (ii) will be released from its obligations
to comply with the provisions of Section 2.4 hereof, and the occurrence of an
Event of Default pursuant to Section 501 of the Senior Indenture shall no longer
be an Event of Default if, in either case, the Company irrevocably deposits with
the Trustee, in trust, money or United States Government Obligations that
through payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all of the
principal of (and premium, if any) and any interest on the Notes on the dates
such payments are due (which may include one or more Redemption Dates designated
by the Company) in accordance with the terms of such Notes.
(c) Such a trust may only be established if, among other things, (i) no
Event of Default or event which with the giving of notice or lapse of time, or
both, would become an Event of Default under the Indenture shall have occurred
and be continuing on the date of such deposit, (ii) the Company shall have
delivered an Opinion of Counsel to the effect that the holders of the Notes of
such series will not recognize gain or loss for United States Federal income tax
purposes as a result of such deposit or defeasance and will be subject to United
Stated Federal income tax in the same manner as if such defeasance had not
occurred. In the event the Company omits to comply with its remaining
obligations under the Indenture after a defeasance of the Indenture with respect
to the Notes and the Notes are declared due and payable because of the
occurrence of any undefeased Event of Default, the amount of money and United
States Government Obligations on deposit with the Trustee may be insufficient to
pay amounts due on the Notes at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect to such
payments.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and the Note shall be governed by and
construed in accordance with the laws of the State of Delaware. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
HEALTH CARE REIT, INC.
By:
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XXXXXX X. XXXXX, XX.
Vice President, Chief
Financial Officer and
Treasurer
FIFTH THIRD BANK
By:
----------------------------
XXXXXXXXX X. XXXXXX
Vice President
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EXHIBIT A TO SUPPLEMENTAL INDENTURE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) 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.
Registered No. PRINCIPAL AMOUNT
CUSIP No. 42217K AG 1 $50,000,000
HEALTH CARE REIT, INC.
8.17% NOTE DUE 2006
HEALTH CARE REIT, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company," which
term shall include any successor corporation under the Senior Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of FIFTY
MILLION DOLLARS on March 15, 2006 and to pay interest on the outstanding
principal amount thereon from March 18, 1999, or from the immediately preceding
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on March 15 and September 15 in each year, commencing
September 15, 1999, at the rate of 8.17% per annum, until the entire 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 the Senior Indenture, be paid to the Person in whose name this
Security 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 shall 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 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 the
Securities not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal
of and interest on this Security will be made at the office or agency 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
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the option of the Company payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located inside the United States.
Securities of this series are 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 April 17, 1997, as
supplemented by Supplemental Indenture No. 3, dated as of March 18, 1999 (as so
supplemented, herein called the "Senior Indenture"), between the Company and
Fifth Third Bank (herein called the "Trustee," which term includes any successor
trustee under the Senior Indenture), to which Senior Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are authenticated and delivered. This Security is one of
the series designated in the first page thereof, limited in aggregate principal
amount to $50,000,000.
The Senior Indenture and the Supplemental Indenture contain provisions
for optional defeasance at any time of the payment and discharge of the entire
indebtedness of the Company on this Security and upon compliance by the Company
with certain conditions set forth in the Senior Indenture, which provisions
apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Senior Indenture.
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 Senior Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities, the Holders of not less than 25% 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
interest on or after the respective due dates expressed herein.
The Senior 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 not less than a majority in
principal amount of the Outstanding Securities of each series of Securities then
Outstanding affected thereby. The Senior Indenture also contains provisions
permitting the Holders of
15
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 Senior
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 such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Senior Indenture and no provision of this
Security or of the Senior Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Senior 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 of Payment where the principal of
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,
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 and any integral multiple thereof. As
provided in the Senior 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 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.
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 not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Senior 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.
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All capitalized terms used in this Security which are defined in the
Senior Indenture shall have the meanings assigned to them in the Senior
Indenture.
THE SENIOR INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Senior Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, HEALTH CARE REIT, INC. has caused this instrument
to be duly executed under its corporate seal.
Dated: March 18, 1999
HEALTH CARE REIT, INC.
By:
--------------------------
XXXXXX X. XXXXX, XX.
Vice President, Chief
Financial Officer and
Treasurer
Corporate Seal
Attest:
--------------------------
Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIFTH THIRD BANK,
as Trustee
-------------------------------
XXXXXXXXX X. XXXXXX,
Vice President
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================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-----------------------------------------------------
-----------------------------------------------------
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
the within Security of Health Care REIT, Inc. and hereby does irrevocably
constitute and appoint _________________________________________ Attorney to
transfer said Security on the books of the within-named Company with full power
of substitution in the premises.
Dated: _________________
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
