Exhibit 4.1
SUPPLEMENTAL INDENTURE NO. 5
BY AND BETWEEN
HEALTH CARE REIT, INC.
AND
FIFTH THIRD BANK
AS OF SEPTEMBER 10, 2003
SUPPLEMENTAL TO THE INDENTURE DATED AS OF APRIL 17, 1997
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HEALTH CARE REIT, INC.
8.09% Notes due 2004
8.17% Notes due 2006
7.50% Notes due 2007
7.625% Notes due 2008
This Supplemental Indenture No. 5 ("Supplemental Indenture") is made
and entered into as of September 10, 2003, 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").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee executed and delivered an
Indenture, dated as of April 17, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Indenture") to provide for the future issuance
of the Company's debt securities (the "Securities") to be issued from time to
time in one or more series;
WHEREAS, pursuant to the terms of the Indenture, the Company and the
Trustee executed and delivered (a) the First Supplemental Indenture, dated as of
April 17, 1997, to provide for the establishment of a series of its Securities,
to be known as its 8.09% Notes due 2004; (b) the Second Supplemental Indenture,
dated as of March 13, 1998, to provide for the establishment of a series of its
Securities, to be known as its 7.625% Notes due 2008; (c) the Third Supplemental
Indenture, dated as of March 18, 1999, to provide for the establishment of a
series of its Securities, to be known as its 8.17% Notes due 2006; and (d) the
Fourth Supplemental Indenture, dated as of August 10, 2001, to provide for the
establishment of a series of its Securities, to be known as its 7.50% Notes due
2007 (each as amended, supplemented or otherwise modified from time to time,
collectively the "Existing Supplemental Indentures");
WHEREAS, pursuant to the terms of the Indenture and the Existing
Supplemental Indentures, the Company and Trustee wish to amend certain covenants
contained in the Existing Supplemental Indentures and Holders of not less than a
majority in principal amount of the Outstanding Securities have consented to
such amendments as required by Section 902 of the Indenture, subject to the
terms and conditions hereinafter set forth; and
WHEREAS, all capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Indenture and Existing Supplemental Indentures.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1. AMENDMENTS TO EXISTING SUPPLEMENTAL INDENTURES.
Section 1.1 Each of the Existing Supplemental Indentures are hereby amended
as follows:
(a) Section 1.2 is hereby amended to include the following
additional defined terms:
"Cash" means as to any Person, such Person's cash and cash
equivalents, as defined in accordance with GAAP consistently
applied.
"Total Assets" means on any date, the consolidated total assets
of the Company and its Subsidiaries, as such amount would appear
on a consolidated balance sheet of the Company prepared as of
such date in accordance with GAAP.
"Total Unencumbered Assets" means on any date, net real estate
investments (valued on a book basis) of the Company and its
Subsidiaries that are not subject to any Lien which secures
indebtedness for borrowed money of any of the Company and its
Subsidiaries plus, without duplication, loan loss reserves
relating thereto, accumulated depreciation thereon plus Cash, as
all such amounts would appear on a consolidated balance sheet of
the Company prepared as of such date in accordance with GAAP.
"Unsecured Debt" means Funded Indebtedness less Indebtedness
secured by Liens on the property or assets of the Company and its
subsidiaries.
"Funded Indebtedness" means as of any date of determination
thereof, (i) all Indebtedness of any Person, determined in
accordance with GAAP, which by its terms matures more than one
year after the date of calculation, and any such Indebtedness
maturing within one year from such date which is renewable or
extendable at the option of the obligor to a date more than one
year from such date, and (ii) the current portion of all such
Indebtedness.
(b) Subsection 2.4(a)(i) is deleted in its entirety and the
following is substituted therefor:
(i) Liens securing obligations that do not in the aggregate
at any one time outstanding exceed 40% of the sum of (i) the
Total Assets of the Company and its consolidated subsidiaries as
of the end of the calendar year or quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with
the Trustee) prior to the incurrence of such additional Liens and
(ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering
proceeds received (to the extent that such proceeds were not used
to acquire real estate assets or mortgages receivable or used to
reduce Indebtedness), by the Company or any Subsidiary since the
end of such calendar quarter, including those proceeds obtained
in connection with the incurrence of such additional Liens;
(c) Subsection 2.4(b) is deleted in its entirety and the
following is substituted therefor:
(b) The Company will not create, assume, incur, or otherwise
become liable in respect of, any Indebtedness if the aggregate
outstanding principal amount of Indebtedness of the Company and
its consolidated subsidiaries is, at the time of such creation,
assumption or incurrence and after giving effect thereto and to
any concurrent transactions, greater than 60% of the sum of (i)
the Total Assets of the Company and its consolidated subsidiaries
as of the end of the calendar year or quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed
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with the Commission (or, if such filing is not permitted under
the Exchange Act, with the Trustee) prior to the incurrence of
such additional Indebtedness and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the
amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Indebtedness),
by the Company or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(d) Subsection 2.4(d) is deleted in its entirety and the
following is substituted therefor:
(d) The Company will maintain as of the last day of each of the
Company's fiscal quarters, Total Unencumbered Assets of not less
than 150% of the aggregate outstanding principal amount of the
Unsecured Debt of the Company and its Subsidiaries on a
consolidated basis.
(e) A new subsection 2.4(e) is added reading as follows:
(e) For purposes of this Section 2.4, 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 2. EFFECTIVENESS.
SECTION 2.1 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 and amended hereby, the Indenture and Existing
Supplemental Indentures are hereby confirmed as being in full force and effect.
ARTICLE 3. MISCELLANEOUS.
SECTION 3.1 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 provisions hereof
or any provisions of the Indenture or Existing Supplemental Indentures.
SECTION 3.2 To the extent any terms of this Supplemental Indenture are
inconsistent with the terms of the Indenture or Existing Supplemental
Indentures, the terms of this Supplemental Indenture shall govern and supercede
such inconsistent terms.
SECTION 3.3 This Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of Delaware.
SECTION 3.4 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.
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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/ George L. Chapman
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Name: George L. Chapman
Title: Chairman and Chief Executive Officer
FIFTH THIRD BANK, as Trustee
By: /s/ Christine M. Schaub
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Name: Christine M. Schaub
Title: Vice President