Exhibit 4.3
AMENDMENT NO. 1 TO
SUPPLEMENTAL INDENTURE NO. 5
BY AND BETWEEN
HEALTH CARE REIT, INC.
AND
FIFTH THIRD BANK
AS OF SEPTEMBER 16, 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
AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 5
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This AMENDMENT NO. 1 ("Amendment No. 1") is made and entered into as of
September 16, 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:
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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; (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; and (e) Supplemental Indenture No. 5, dated as of September 10, 2003, to
amend certain provisions of the supplemental indentures described in items (a)
through (d) above ("Supplemental Indenture No. 5") (each as amended,
supplemented or otherwise modified from time to time, collectively the
"Supplemental Indentures");
WHEREAS, pursuant to the terms of the Indenture and the Supplemental
Indentures, the Company and Trustee wish to amend certain provisions contained
in Supplemental Indenture No. 5, 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 Supplemental Indentures.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO SUPPLEMENTAL INDENTURE NO. 5.
Section 1.1 Supplemental Indenture No. 5 is hereby amended as
follows:
(a) Section 1.1(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 and at all times, 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.
ARTICLE 2. EFFECTIVENESS.
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SECTION 2.1 This Amendment No. 1 shall be effective for all
purposes as of the date and time this Amendment No. 1 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 Supplemental
Indentures are hereby confirmed as being in full force and effect.
ARTICLE 3. MISCELLANEOUS.
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SECTION 3.1 In the event any provision of this Amendment No. 1 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 Supplemental Indentures.
SECTION 3.2 To the extent any terms of this Amendment No. 1 are
inconsistent with the terms of the Indenture or Supplemental Indentures, the
terms of this Amendment No. 1 shall govern and supercede such inconsistent
terms.
SECTION 3.3 This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of Delaware.
SECTION 3.4 This Amendment No. 1 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.
2
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Amendment No. 1 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