Exhibit 4.2
SUPPLEMENTAL INDENTURE NO. 2
BY AND BETWEEN
HEALTH CARE REIT, INC.
AND
FIFTH THIRD BANK
AS OF SEPTEMBER 10, 2003
SUPPLEMENTAL TO THE INDENTURE DATED AS OF SEPTEMBER 6, 2002
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HEALTH CARE REIT, INC.
8.00% Senior Notes due 2012
This SUPPLEMENTAL INDENTURE NO. 2 ("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 September 6, 2002 (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;
WHEREAS, pursuant to the terms of the Indenture, the Company and the
Trustee executed and delivered Supplemental Indenture No. 1, dated as of
September 6, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Existing Supplemental Indenture") to provide for the establishment of
a series of its Securities, to be known as its 8.00% Senior Notes due 2012;
WHEREAS, pursuant to the terms of the Indenture and the Existing
Supplemental Indenture, the Company and Trustee wish to amend certain covenants
contained in the Existing Supplemental Indenture 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 Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1. AMENDMENTS TO EXISTING SUPPLEMENTAL INDENTURE.
Section 1.1 The Existing Supplemental Indenture is hereby amended as
follows:
(a) Section 1.1 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
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 3.1(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 3.1(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
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.
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(d) Subsection 3.1(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 3.1(e) is added reading as follows:
(e) 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 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 Indenture 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 Indenture.
SECTION 3.2 To the extent any terms of this Supplemental Indenture are
inconsistent with the terms of the Indenture or Existing Supplemental Indenture,
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