Exhibit 1.1
Execution Copy
HEALTH CARE REIT, INC.
$1,400,000,000
3.625% Notes due 2016
5.250% Notes due 2022
6.500% Notes due 2041
UNDERWRITING AGREEMENT
March 9, 2011
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
UBS Securities LLC
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Wells Fargo Securities, LLC
As Representatives of the Several Underwriters
c/o UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Ladies and Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the Company), proposes to sell to the
underwriters (the Underwriters) named in Schedule I hereto for whom you are acting as
representatives (the Representatives), (a) $400,000,000 aggregate principal amount of the
Companys 3.625% Notes due 2016 (the 2016 Notes), (b) $600,000,000 aggregate principal amount of
the Companys 5.250% Notes due 2022 (the 2022 Notes) and (c) $400,000,000 aggregate principal
amount of the Companys 6.500% Notes due 2041 (the 2041 Notes, and together with the 2016 Notes
and the 2022 Notes, the Notes), to be issued pursuant to the provisions of an indenture dated as
of March 15, 2010, between the Company and The Bank of New York Mellon Trust Company, N.A., as
trustee (the Trustee), as supplemented by a supplemental indenture thereto, to be dated as of
March 14, 2011 (the indenture, as so supplemented, the Indenture).
As the Representatives, you have advised the Company (a) that you are authorized to enter into
this Agreement and (b) that the Underwriters are willing to purchase, acting severally and not
jointly, the Notes set forth in Schedule I hereto.
The Company has entered into a purchase agreement dated as of February 28, 2011 (the
Acquisition Agreement) among the Company, FC-GEN Investment, LLC (FC-GEN) and FC-GEN Operations
Investment, LLC, pursuant to which the Company will purchase (the Acquisition) 100% of the equity
interests of FC-GEN Acquisition Holding, LLC (FC-GEN Acquisition Holding), which indirectly owns
senior housing and care facilities.
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to the
Underwriters as of the date hereof, as of the Applicable Time (as defined below) and as of the
Closing Date (as defined below) as follows:
(i) An automatic shelf registration statement as defined in Rule 405 under the
Securities Act of 1933, as amended (the Securities Act), on Form S-3 (File No. 333-159040)
in respect of the Notes, including a form of prospectus (the Base Prospectus), has been
prepared and filed by the Company not earlier than three years prior to the date hereof, in
conformity with the requirements of the Securities Act, and the rules and regulations of the
Securities and Exchange Commission (the Commission) thereunder (the Rules and
Regulations). The Company and the transactions contemplated by this Agreement meet the
requirements and comply with the conditions for the use of Form S-3. Copies of such
registration statement, including any amendments thereto, the Base Prospectus, as
supplemented by any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Notes filed with the Commission pursuant to Rule 424(b) under the Securities
Act (a Preliminary Prospectus), and including the documents incorporated in the Base
Prospectus by reference, and the exhibits, financial statements and schedules to such
registration statement, in each case as finally amended and revised, have heretofore been
delivered by the Company to the Representatives. Such registration statement is herein
referred to as the Registration Statement, which shall be deemed to include all
information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Securities
Act and contained in the Prospectus referred to below, has become effective under the
Securities Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. Prospectus means the form of prospectus relating to the
Notes first filed with the Commission pursuant to and within the time limits described in
Rule 424(b) under the Securities Act and in accordance with Section 4(i) hereof. Any
reference herein to the Registration Statement, any Preliminary Prospectus or to the
Prospectus or to any amendment or supplement to any of the foregoing documents shall be
deemed to refer to and include any documents incorporated by reference therein, and, in the
case of any reference herein to the Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or amendments thereto,
filed with the Commission after the date of filing of the Prospectus under Rule 424(b) under
the Securities Act, and prior to the termination of the offering of the Notes by the
Underwriters.
(ii) As of the Applicable Time (as defined below), neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below), all considered together (collectively, the General
Disclosure Package), nor (ii) any individual Limited Use Free Writing Prospectus (as
defined below), when considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from any Issuer Free Writing
Prospectus, in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the Representatives, specifically for use
therein, it being understood and agreed that the only such information is that described in
Section 13 herein. As used in this subsection and elsewhere in this Agreement:
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Applicable Time means 5:00 p.m. (New York time) on the date of this Agreement or such
other time as agreed to by the Company and the Representatives.
Statutory Prospectus means the Base Prospectus, as amended and supplemented
immediately prior to the Applicable Time, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof.
Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined
in Rule 433 under the Securities Act, relating to the Notes in the form filed or required to
be filed with the Commission or, if not required to be filed, in the form retained in the
Companys records pursuant to Rule 433(g) under the Securities Act.
General Use Free Writing Prospectus means any Issuer Free Writing Prospectus that is
identified on Schedule II to this Agreement.
Limited Use Free Writing Prospectus means any Issuer Free Writing Prospectus that is
not a General Use Free Writing Prospectus.
(iii) The Company and each of its Subsidiaries (as defined below) has been duly
organized and is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own its properties and conduct its
business as described in the Registration Statement, the General Disclosure Package and the
Prospectus; the Company and each of its Subsidiaries is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires such qualification, and
in which the failure to qualify would (a) have a materially adverse effect upon the business
of the Company and its Subsidiaries, taken as a whole, (b) adversely affect the issuance,
validity or enforceability of the Notes or the enforceability of the Indenture or (c)
prevent or materially interfere with the consummation of the transactions contemplated by
this Agreement (each of (a), (b) and (c) above, a Material Adverse Effect). All of the
Companys subsidiaries are listed in Schedule IV hereto (the Subsidiaries).
(iv) The Notes have been duly authorized and, when issued, authenticated and delivered
pursuant to this Agreement and the Indenture, will be (a) duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in effect relating to
creditors rights generally and (y) general principles of equity and the limits of specific
performance and injunctive relief (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized and qualified under the Trust Indenture Act of 1939,
as amended (the Trust Indenture Act), and constitutes a valid and binding instrument of
the Company enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (x) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect
relating to creditors rights generally and (y) general principles of equity and the limits
of specific performance and injunctive relief (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the Notes and the Indenture will
conform to the statements relating thereto contained in the Registration Statement, the
General Disclosure Package and the Prospectus.
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(v) The information contained in the line items Preferred Stock and Common Stock
set forth in the consolidated balance sheet as of December 31, 2010 contained in the
Companys Annual Report on Form 10-K for the year ended December 31, 2010 and in the section
captioned Capitalization in the Prospectus (and any similar section or information
contained in the General Disclosure Package) sets forth the authorized, issued and
outstanding capital stock of the Company at the indicated date, and, except for issuances
since such date of (a) 472,986 shares of the Companys Common Stock under the Companys
Dividend Reinvestment and Stock Purchase Plan, as amended; (b) 193,707 shares of the
Companys Common Stock under the Companys Amended and Restated 2005 Long-Term Incentive
Plan; (c) 349,854 shares of the Companys Series H Convertible Preferred Stock; (d)
28,750,000 shares of the Companys Common Stock in a public offering consummated on March 7,
2011; and (e) 14,375,000 shares of the Companys Series I Cumulative Convertible Perpetual
Preferred Stock in a public offering consummated on March 7, 2011, there has been no
material change in such information since December 31, 2010; all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
(vi) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Notes, and no proceeding for that purpose or pursuant to Section 8A
of the Securities Act has been instituted or, to the Companys knowledge, threatened by the
Commission. The Registration Statement complies, and the Prospectus and any amendments or
supplements thereto will comply, as to form in all material respects with the requirements
of the Securities Act, the Trust Indenture Act and the rules and regulations of the
Commission thereunder. The documents incorporated, or to be incorporated, by reference in
the Prospectus, at the time filed with the Commission complied or will comply, as to form in
all material respects to the requirements of the Securities Exchange Act of 1934 (Exchange
Act) or the Securities Act, as applicable, and the rules and regulations of the Commission
thereunder. The Registration Statement and any amendment thereto do not contain, and, at
all times during the period that begins on the date hereof and ends as of the Closing Date,
and as of the Closing Date, will not contain, any untrue statement of a material fact and do
not omit, and will not omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and, at all times during the period that begins on
the date hereof and ends as of the Closing Date, and as of the Closing Date, will not
contain any untrue statement of a material fact; and do not omit, and will not omit, to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished to the Company by or on
behalf of any Underwriter through the Representatives, specifically for use therein, it
being understood and agreed that the only such information is that described in Section 13
herein.
(vii) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Notes or until any earlier
date that the Company notified or notifies the Representatives, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document
incorporated by reference and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified.
(viii) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the offering and sale of the Notes other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the
Securities
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Act and consistent with Section 4(ii) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses required to be filed with the Commission in the time and
manner required under Rules 163(b)(2) and 433(d) under the Securities Act.
(ix) (a) At the time of filing the Registration Statement, (b) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (c) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Securities Act) made any offer relating to the Notes in
reliance on the exemption of Rule 163 under the Securities Act and (d) at the date hereof,
the Company is a well-known seasoned issuer as defined in Rule 405 under the Securities
Act. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2)
under the Securities Act objecting to the use of the automatic shelf registration form.
(x) (a) At the earliest time after the filing the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Notes and (b) as of the date hereof (with such
date being used as the determination date for purposes of this clause (b)), the Company was
not and is not an ineligible issuer (as defined in Rule 405 under the Securities Act,
without taking into account any determination by the Commission pursuant to Rule 405 under
the Securities Act that it is not necessary that the Company be considered an ineligible
issuer), including, without limitation, for purposes of Rules 164 and 433 under the
Securities Act with respect to the offering of the Notes as contemplated by the Registration
Statement.
(xi) The financial statements of the Company, together with related notes and
schedules, as set forth or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, present fairly in all material respects the
consolidated financial position and the results of operations of the Company and its
Subsidiaries at the indicated dates and for the indicated periods. Such financial
statements and the related notes and schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results for such periods
have been made. All pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus
comply with the applicable requirements of the Securities Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those statements and data.
The summary financial and statistical data included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus present fairly in
all material respects the information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis consistent with the financial
statements presented therein. All disclosures contained in the Registration Statement, the
General Disclosure Package and the Prospectus, including the documents incorporated by
reference therein, regarding non-GAAP financial measures (as such term is defined by the
Rules and Regulations) comply in all material respects with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(xii) There is no action or proceeding pending or, to the knowledge of the Company,
threatened (a) against the Company or its Subsidiaries or (b) involving any property of the
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Company or its Subsidiaries before any court or administrative agency which, if determined
adversely to the Company or its Subsidiaries, would reasonably be expected to result in any
Material Adverse Effect, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(xiii) The Company, together with its Subsidiaries, has good and marketable title to
all of the properties and assets reflected in the financial statements hereinabove described
(or as described in the Registration Statement, the General Disclosure Package and the
Prospectus as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except those reflected in such financial statements (or as described in the
Registration Statement, the General Disclosure Package and the Prospectus) or which are not
material in amount or which do not materially interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages to which the Company
or any of its Subsidiaries is a party, and the guaranties of third parties (a) are the
legal, valid and binding obligations of the Company, its Subsidiaries and, to the knowledge
of the Company, of all other parties thereto, and the Company knows of no default or
defenses currently existing with respect thereto which would reasonably be expected to
result in any Material Adverse Effect, and (b) conform to any descriptions thereof set forth
in the Registration Statement, the General Disclosure Package and the Prospectus. Each
mortgage which the Company or any of its Subsidiaries holds on the properties described in
the Registration Statement, the General Disclosure Package and the Prospectus constitutes a
valid mortgage lien for the benefit of the Company or its Subsidiary, as the case may be, on
such property.
(xiv) The Company has filed all Federal, state and foreign income tax returns which
have been required to be filed and has paid all taxes indicated by said returns and all
assessments received by it to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been adequately provided for in the
financial statements of the Company.
(xv) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, except in each case as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, as each may be amended or supplemented (a)
there has not been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries considered as one enterprise or the earnings, capital stock
(except that issued and outstanding capital stock of the Company has increased due to
issuances since such date of (a) 472,986 shares of the Companys Common Stock under the
Companys Dividend Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of
the Companys Common Stock under the Companys Amended and Restated 2005 Long-Term Incentive
Plan, (c) 349,854 shares of the Companys Series H Convertible Preferred Stock, (d)
28,750,000 shares of the Companys Common Stock in a public offering consummated on March 7,
2011 and (e) 14,375,000 shares of the Companys Series I Cumulative Convertible Perpetual
Preferred Stock in a public offering consummated on March 7, 2011), business affairs,
management, or business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not occurring in the ordinary course of business, (b) there have been
no liabilities or obligations incurred by the Company or any of its Subsidiaries that are
material with respect to the Company and its Subsidiaries considered as one enterprise, and
(c) there have been no transactions entered into by the Company or any of its Subsidiaries
that are material with respect to the Company and its Subsidiaries considered as one
enterprise, other than transactions in the ordinary course of business. There are no
contingent obligations of the Company or any of its Subsidiaries that are
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material with respect to the Company and its Subsidiaries considered as one enterprise that
are not disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xvi) The Company is not in violation of its charter or by-laws. No Subsidiary is in
violation of its charter or by-laws, which violation will have, or after any required notice
and passage of any applicable grace period would have, a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries are (a) in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or by which it
or any of its properties is bound, (b) in violation of any statute, or (c) in violation of
any order, rule or regulation applicable to the Company, its Subsidiaries or its properties,
of any court or of any regulatory body, administrative agency or other governmental body,
any of which defaults or violations described in clauses (a) through (c) will have, or after
any required notice and passage of any applicable grace period would have, a Material
Adverse Effect. The issue and sale of the Notes and the performance by the Company of all
of its obligations under the Notes, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated and the transactions described in the
General Disclosure Package and the Prospectus under the caption The Acquisition and the
fulfillment of the terms hereof and thereof will not after any required notice and passage
of any applicable grace period conflict with or constitute a violation of any statute or
conflict with or result in a breach of any of the terms or provisions of, constitute a
default under or result in the imposition of any lien pursuant to, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company, or any of its
Subsidiaries, is a party or by which it or any of its properties may be bound, or a
violation of its charter or by-laws or any order, rule or regulation applicable to the
Company, its Subsidiaries or its properties of any court or of any regulatory body,
administrative agency or other governmental body.
(xvii) Each approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the consummation of the
transactions contemplated by this Agreement and the Indenture (except such additional steps
as may be required by the Commission, the Financial Industry Regulatory Authority, Inc.
(FINRA), or may be necessary to qualify the Notes for public offering by the Underwriters
under state securities or Blue Sky laws) or the Acquisition Agreement (except as
provided in the Acquisition Agreement with respect to the consummation of the Acquisition
and only as to the Companys obligations under the Acquisition Agreement) has been obtained
or made by the Company, and is in full force and effect.
(xviii) The Company and its Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of their businesses
and neither the Company nor any of its Subsidiaries have received any notice of infringement
or of conflict with asserted rights of others with respect to any patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to the business of the
Company and its Subsidiaries.
(xix) The Company qualifies as a real estate investment trust pursuant to Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the
taxable years ended December 31, 1984 through December 31, 2010 and no transaction or other
event has occurred or is contemplated which would prevent the Company from so qualifying for
its current taxable year.
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(xx) To the best of the Companys knowledge, the accountants who have certified certain
of the financial statements and related schedules filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, the General Disclosure Package and
the Prospectus, are each an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations and the Public Company Accounting Oversight
Board (the PCAOB), in the case of the Company, or as required by Rule 101 of the Code of
Professional Conduct of the AICPA, in the case of FC-GEN Acquisition Holding.
(xxi) The Company and its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with managements general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (c)
access to assets is permitted only in accordance with managements general or specific
authorization; and (d) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the Companys Chief Executive Officer
and its Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they were
established; the Companys auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (a) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Companys ability to record, process,
summarize, and report financial data; and (b) any fraud, whether or not material, that
involves management or other employees who have a role in the Companys internal controls;
any material weaknesses in internal controls have been identified for the Companys
auditors; and since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(xxiii) Since July 30, 2002, the Company has not, directly or indirectly, including
through any Subsidiary: (a) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (b) made any material modification, including any
renewal thereof, to any term of any personal loan to any director or executive officer of
the Company, or any family member or affiliate of any director or executive officer, which
loan was outstanding on July 30, 2002.
(xxiv) To the knowledge of the Company, after inquiry of its officers and directors,
there are no affiliations with any FINRA member firm among the Companys officers,
directors, or principal stockholders, except as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, or as otherwise disclosed in writing to the
Underwriters.
(xxv) This Agreement and the Indenture have been duly authorized, executed and
delivered by the Company.
(xxvi) Neither the Company nor any of its officers or directors has taken nor will any
of them take, directly or indirectly, any action resulting in a violation of Regulation M
promulgated
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under the Exchange Act, or designed to cause or result in, or which has constituted or which
reasonably might be expected to constitute, the stabilization or manipulation of the price
of the Notes. The Company acknowledges that the Underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the Notes, including stabilizing
bids, syndicate covering transactions and the imposition of penalty bids.
(xxvii) The Company is not, and immediately after the sale of the Notes pursuant to the
terms and conditions of this Agreement will not be, an investment company within the
meaning of the Investment Company Act of 1940.
(xxviii) The Acquisition Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance with its
terms, and, assuming the due authorization, execution and delivery thereof by the other
parties thereto, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors rights generally or by general equitable
principles. The Company reasonably believes that the Acquisition will be consummated in all
material respects on the terms and by the date and as contemplated by the General Disclosure
Package, the Prospectus and the Acquisition Agreement. The consummation of the Acquisition
would not reasonably be expected to have a Material Adverse Effect, with FC-GEN Acquisition
Holding considered to be a Subsidiary of the Company for purposes of this Section 1(xxviii).
(xxix) To the knowledge of the Company, the representations and warranties contained
(A) in paragraphs (iii), (xii), (xiii), (xv), (xvi) and (xviii) of this Section 1 are true
and correct with each reference to Subsidiary deemed to include FC-GEN Acquisition Holding,
for purposes of this clause (A); (B) in paragraph (vi) of this Section 1 are true and
correct with respect to any information regarding FC-GEN Acquisition Holding contained in
the Registration Statement, the General Disclosure Package and the Prospectus; and (C) in
paragraph (xi) of this Section 1 are true and correct with respect to the financial
statements and any supporting schedules of FC-GEN Acquisition Holding included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus; except in each of (A), (B) and (C) where the failure to be so true and
correct would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, with FC-GEN Acquisition Holding considered to be a Subsidiary of
the Company for purposes of this Section 1(xxix).
2. Purchase, Sale and Delivery of the Notes.
On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, (a) the principal amount of the 2016 Notes set forth opposite the name of such
Underwriter in Schedule I hereto (plus any additional principal amount of the 2016 Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof) at a
purchase price of 99.038% of the principal amount thereof, (b) the principal amount of the 2022
Notes set forth opposite the name of such Underwriter in Schedule I hereto (plus any additional
principal amount of the 2022 Notes which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 11 hereof) at a purchase price of 98.689% of the principal amount
thereof, and (c) the principal amount of the 2041 Notes set forth opposite the name of such
Underwriter in Schedule I hereto (plus any additional principal amount of the 2041 Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof) at a
purchase price of 98.200% of the principal amount thereof, plus, in each case, accrued interest (if
any) to the Closing Date (as defined below).
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Payment for the Notes to be sold hereunder is to be made by Federal Funds wire transfer to an
account designated by the Company for the Notes to be sold by the Company against delivery of the
Notes to the Representatives. Such payment and delivery are to be made at the offices of Calfee,
Halter & Griswold LLP, 1400 KeyBank Center, 800 Superior Avenue, Cleveland, Ohio, at 10:00 a.m. New
York time, on March 14, 2011 or at such other time and date thereafter as the Representatives and
the Company shall agree upon, such time and date being herein referred to as the Closing Date.
(As used herein, business day means a day on which the New York Stock Exchange (NYSE) is open
for trading and on which banks in New York are open for business and not permitted by law or
executive order to be closed). Each of the 2016 Notes, the 2022 Notes and the 2041 Notes will be
evidenced by separate definitive global certificates in book entry form, fully registered in the
name of Cede & Co., as nominee for The Depository Trust Company (DTC), or registered in such
other names and in such denominations as the Representatives request in writing not later than the
second full business day prior to the Closing Date. The global certificates will be made available
for inspection by the Representatives at least one business day prior to the Closing Date at such
place as the Representatives, DTC and the Company shall agree.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a
public offering of the Notes as soon as the Representatives deem it advisable to do so. The Notes
are to be initially offered to the public at the price and upon the terms set forth in the
Prospectus. The Representatives may from time to time thereafter change the public offering price
and other selling terms.
4. Covenants of the Company.
The Company covenants and agrees with the Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Securities Act a prospectus in a form
approved by the Representatives containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under
the Securities Act, (b) not file any amendment to the Registration Statement or distribute
an amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representatives shall not previously have
been advised and furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations for so long
as the Representatives may deem necessary in order to complete the distribution of the Notes
and (c) file on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission subsequent to the date of
the Prospectus and prior to the termination of the offering of the Notes by the
Underwriters; provided, however, that for each such report or preliminary or definitive
proxy or information statement, the Company will not file any such report or preliminary or
definitive proxy or information statement, or amendment thereto, of which the
Representatives shall not previously have been advised and furnished with a copy or to which
the Representatives shall have reasonably objected in writing or which is not in compliance
with the Exchange Act.
(ii) The Company will (a) not make any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free
writing prospectus (as defined in Rule 405 under the Securities Act) required to be filed
by the Company with the Commission under Rule 433 under the Securities Act unless the
Representatives approve its use in writing prior to first use (each, a Permitted Free
Writing Prospectus); provided that the prior written consent of the Representatives hereto
shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es)
included in Schedule II hereto, (b) treat each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, (c) comply with the requirements of Rules
10
163, 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus,
including the requirements relating to timely filing with the Commission, legending and
record keeping and (d) not take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that
such Underwriter otherwise would not have been required to file thereunder.
(iii) The Company will prepare a final term sheet (the Final Term Sheet) reflecting
the final terms of the Notes, in form and substance satisfactory to the Representatives and
as described on Schedule III, and shall file such Final Term Sheet as an Issuer Free Writing
Prospectus pursuant to Rule 433 under the Securities Act prior to the close of business two
business days after the date hereof; provided that the Company shall provide the
Representatives with copies of any such Final Term Sheet a reasonable amount of time prior
to such proposed filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall reasonably object.
(iv) The Company will advise the Representatives promptly (a) when any post-effective
amendment to the Registration Statement or new registration statement relating to the Notes
shall have become effective, or any supplement to the Prospectus shall have been filed, (b)
of the receipt of any comments from the Commission, (c) of any request of the Commission for
amendment of the Registration Statement or the filing of a new registration statement or any
amendment or supplement to the General Disclosure Package or the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof or for any
additional information, and (d) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or such new registration
statement or any order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings
for that purpose for so long as the Representatives may deem necessary in order to complete
the distribution of the Notes, or of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, and the Company will use its best efforts to prevent
(x) the issuance of any such stop order suspending the effectiveness of the Registration
Statement or such new registration statement or any order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or (y)
any such suspension of the qualification of the Notes for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any such order, if issued, or
such suspension of qualification.
(v) The Company will pay the fees applicable to the Registration Statement in
connection with the offering of the Notes within the time required by Rule 456(b)(1)(i)
under the Securities Act (without reliance on the proviso to Rule 456(b)(1)(i) under the
Securities Act) and in compliance with Rule 456(b) and Rule 457(r) under the Securities Act.
(vi) If at any time when Notes remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (a) promptly notify the Representatives, (b) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Notes, in a form
satisfactory to the Representatives, (c) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective as soon as practicable (if
such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities
Act), and (d) promptly notify the Representatives of such effectiveness. The Company will
take all other action necessary or appropriate to permit the public offering and sale of the
Notes to continue as contemplated in the Registration Statement that was the subject of the
notice under Rule
11
401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible.
References herein to the Registration Statement relating to the Notes shall include such
new registration statement or post-effective amendment, as the case may be.
(vii) If immediately prior to the third anniversary (the Renewal Deadline) of the
initial effective date of the Registration Statement, any of the Notes remain unsold by the
Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to
the Notes, in a form satisfactory to the Representatives. If the Company is not eligible to
file an automatic shelf registration statement, the Company will, prior to the Renewal
Deadline, if it has not already done so, file a new shelf registration statement relating to
the Notes, in a form satisfactory to the Representatives, and will use its best efforts to
cause such registration statement to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Notes to continue as contemplated in the expired
registration statement. References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf registration statement, as the
case may be.
(viii) The Company will deliver to, or upon the order of, the Representatives, from
time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing
Prospectus as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a Prospectus (or,
in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act) is
required under the Securities Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may reasonably request. The
Company will furnish upon request to the Representatives signed copies of the Registration
Statement and all amendments thereto including all exhibits filed therewith.
(ix) The Company will comply with the Securities Act and the Rules and Regulations and
the Exchange Act, and the rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Notes as contemplated in this Agreement and
the Prospectus. Subject to the provisions of Section 4(i) above, if during the period in
which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the
Securities Act) is required by law to be delivered by an Underwriter or a dealer any event
shall occur as a result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the Company promptly will
either (a) prepare and file with the Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the light of
the circumstances when it is so delivered, be misleading, or so that the Prospectus will
comply with law.
(x) If the General Disclosure Package is being used to solicit offers to buy the Notes
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances, not misleading, or to make the statements therein not conflict with the
information contained in the Registration Statement then on file, or if it
12
is necessary at any time to amend or supplement the General Disclosure Package to comply
with any law, the Company promptly will either (a) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
General Disclosure Package so that the General Disclosure Package as so amended or
supplemented will not, in the light of the circumstances, be misleading or conflict with the
Registration Statement then on file, or so that the General Disclosure Package will comply
with law.
(xi) The Company will make generally available to its security holders, as soon as it
is practicable to do so, but in any event not later than 15 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement (which need not be audited) in reasonable detail, covering a period of
twelve consecutive months beginning after the effective date of the Registration Statement,
which earnings statement shall satisfy the requirements of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act.
(xii) The Company will, for a period of five years from the Closing Date, furnish upon
request to the Representatives, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year and the Company will furnish upon
request to the Representatives, as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to stockholders.
(xiii) The Company will not, during the period beginning on the date hereof and
continuing to and including the business day following the Closing Date, offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed by the Company
which are substantially similar to the Notes without the Representatives prior written
consent.
(xiv) The Company will use the net proceeds from the sale of the Notes pursuant to this
Agreement in the manner specified under the heading Use of Proceeds in the Prospectus.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement and the Indenture, including, without limiting
the generality of the foregoing, the following: the fees incident to the preparation, issuance,
execution, authentication and delivery of the Notes, including any expenses of the Trustee; the
fees payable to rating agencies in connection with the rating of the Notes; accounting fees of the
Company (accounting fees of FC-GEN Acquisition Holding are to be paid by FC-GEN pursuant to the
Acquisition Agreement); the fees and disbursements of counsel for the Company; the cost of printing
and delivering to, or as requested by, the Underwriters, copies of the Registration Statement, the
Preliminary Prospectuses, the Issuer Free Writing Prospectuses, the Prospectus, this Agreement, the
Indenture and any supplements or amendments thereto; the fees incident to the listing of the Notes
on any securities exchange; the filing fees of the Commission; and the filing fees and expenses
(including legal fees and disbursements) incident to securing any required review by FINRA of the
terms of the sale of the Notes. Any transfer taxes imposed on the sale of the Notes to the several
Underwriters will be paid by the Company. The Company shall not, however, be required to pay for
any of the Underwriters expenses except that, if this Agreement shall not be consummated because
the conditions in Section 7 hereof are not satisfied, or because this Agreement is terminated by
the Representatives pursuant to Section 6 hereof, or this Agreement is terminated pursuant to
Section 10(i)(a) or Section 10(i)(g) hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms is due to the default or omission of any Underwriter,
13
then the Company shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Notes or in contemplation of performing their obligations
hereunder, but the Company shall not in any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits from the sale by any of them of the Notes.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters
to purchase the Notes on the Closing Date are subject to the accuracy, as of the Closing Date, of
the representations and warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated or threatened by
the Commission. The Prospectus and each Issuer Free Writing Prospectus required to be filed
with the Commission shall have been filed as required by Rules 424, 430A, 430B, 430C or 433
under the Securities Act, as applicable, within the time period prescribed by, and in
compliance with, the Rules and Regulations, and any request by the Commission for additional
information (to be included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable satisfaction.
(ii) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have occurred any downgrading, nor shall any notice have been
given of (a) any intended or potential downgrading or (b) any review or possible change that
does not indicate an affirmation or improvement in the rating, if any, accorded any
securities of or guaranteed by the Company by any nationally recognized statistical rating
organization, as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
(iii) The Representatives shall have received on the Closing Date the opinion of
Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the Closing Date and
addressed to the Representatives, as representatives of the several Underwriters, to the
effect that:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business as described in
the Registration Statement, the General Disclosure Package and the Prospectus.
(b) The Company is duly qualified to transact business in all jurisdictions in
which the Company owns or leases real property, and in which the failure to qualify
would have a Material Adverse Effect.
(c) The information contained in the line items Preferred Stock and Common
Stock set forth in the consolidated balance sheet as of December 31, 2010 contained
in the Companys Annual Report on Form 10-K for the year ended December 31, 2010 and
in the section captioned Capitalization in the Prospectus (and any similar section
or information contained in the General Disclosure Package) sets forth the
authorized, issued and outstanding capital stock of the Company at the indicated
date; the authorized shares of capital stock of the Company have been duly
authorized; the issued and outstanding shares of the capital stock of the Company
have been duly authorized and validly issued and are fully paid and non-assessable;
the Notes are free of statutory
14
and contractual preemptive rights and similar rights; and the certificates for the
Notes are in due and proper form.
(d) The Registration Statement has become effective under the Securities Act
and, to such counsels knowledge no stop order proceedings with respect thereto have
been instituted or are pending or threatened under the Securities Act.
(e) The Registration Statement, at the time the Registration Statement became
effective, and the Prospectus, as of the date of the Prospectus and as of the date
hereof, and any amendment or supplement thereto, as of the date thereof, each
complied as to form in all material respects with the requirements of the Securities
Act, the Exchange Act or the Trust Indenture Act, as applicable, and the rules and
regulations of the Commission promulgated thereunder (except in each case such
counsel need express no opinion as to the financial statements, schedules and other
financial or statistical data included or incorporated by reference therein or
omitted therefrom). The documents incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus (other than the
financial statements, schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such counsel
need express no opinion), at the respective times such documents were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder.
(f) The statements under the captions Description of the Notes and
Description of Debt Securities in the General Disclosure Package and the
Prospectus, insofar as such statements constitute a summary of documents referred to
therein or matters of law, fairly summarize in all material respects the information
called for with respect to such documents and matters.
(g) The statements under the caption Certain Government Regulations in the
Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2010,
and any amendments thereto, as to matters of law stated therein, have been reviewed
by such counsel and fairly summarize in all material respects the matters described
therein which are material to the business or condition (financial or otherwise) of
the Company.
(h) Such counsel does not know of any contracts or documents required to be
filed as exhibits to or incorporated by reference in the Registration Statement or
described in the Registration Statement or the Prospectus or any amendment or
supplement thereto which are not so filed, incorporated by reference or described as
required, and the provisions of such contracts and documents that are required to be
described in the Registration Statement or the Prospectus or any amendment or
supplement thereto are fairly summarized therein in all material respects.
(i) Such counsel knows of no material legal proceedings pending or threatened
against the Company, except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(j) The execution and delivery of this Agreement and the Indenture and the
consummation of the transactions contemplated in this Agreement and the Indenture,
including the issuance and sale of the Notes and the performance by the Company of
its
15
obligations under the Notes, the Indenture and this Agreement, do not and will not
after any required notice and passage of any applicable grace period conflict with
or constitute a violation of any statute or conflict with or result in a breach of
any of the terms or provisions of, constitute a default under or result in the
imposition of any lien pursuant to (1) the charter or by-laws of the Company, (2)
any agreement or instrument known to such counsel to which the Company is a party or
by which the Company or the Companys properties may be bound, which conflict,
violation, breach, default or lien could reasonably be expected to have a Material
Adverse Effect or (3) any order known to such counsel or rule or regulation of any
court or governmental agency or body which in the experience of such counsel is
customarily applicable to the transactions herein contemplated (except that such
counsel expresses no opinion with respect to any requirement of FINRA or pursuant to
any state securities or Blue Sky laws).
(k) This Agreement has been duly authorized, executed and delivered by the
Company.
(l) The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in effect
relating to creditors rights generally and (B) general principles of equity and the
limits of specific performance and injunctive relief (regardless of whether
enforceability is considered in a proceeding at law or in equity); and the Indenture
has been duly qualified under the Trust Indenture Act.
(m) The Notes have been duly authorized and executed by the Company and when
authenticated in accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the Agreement, will
constitute a valid and binding obligation of the Company entitled to the benefits
provided by the Indenture, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws now or hereafter in effect relating to creditors rights generally and
(B) general principles of equity and the limits of specific performance and
injunctive relief (regardless of whether enforceability is considered in a
proceeding at law or in equity).
(n) The Indenture and the Notes conform in all material respects to the
descriptions thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(o) No approval, consent, order, authorization, designation, declaration or filing by
or with any regulatory, administrative or other governmental body is necessary in connection
with the execution and delivery by the Company of this Agreement or the Indenture and the
performance by the Company of its obligations hereunder and thereunder (other than as may be
required by the Commission or FINRA or as required by state securities and Blue Sky laws as to
which such counsel need express no opinion) except such as have been obtained or made by the
Company, specifying the same.
16
(p) The Company is not, and immediately after the sale of the Notes pursuant to
the terms and conditions of this Agreement will not be, an investment company
within the meaning of the Investment Company Act of 1940.
(q) Any required filing pursuant to Rule 433 under the Securities Act of each
Issuer Free Writing Prospectus that is identified on Schedule II hereto has been
made within the time period required by Rule 433(d) under the Securities Act and any
required filing of the Preliminary Prospectus, the Prospectus and any supplement
thereto pursuant to Rule 424 under the Securities Act has been made in the manner
and within the time period required by Rule 424 under the Securities Act.
In addition, either such counsel or Arnold & Porter LLP, special tax counsel to the
Company, will provide an opinion, based on such counsels own review of the Companys
certificate of incorporation, stating that the Company was organized and continues to be
organized in conformity with the requirements for qualification as a real estate investment
trust under subchapter M of the Internal Revenue Code of 1986, as amended (the Code), and,
based on such counsels review of the Companys federal income tax returns and discussions
with management and independent public accountants for the Company, that the Company, taking
into account operations for its taxable and fiscal years ended December 31, 2003 through
December 31, 2010, satisfied the requirements for qualification and taxation as a real
estate investment trust under the Code for such years and that its proposed method of
operation will enable it to meet the requirements for qualification and taxation as a real
estate investment trust under the Code for its taxable and fiscal year ending December 31,
2011. Furthermore, such counsel shall opine that the statements contained under the heading
Taxation in the Companys Annual Report on Form 10-K for the fiscal year ended December
31, 2010, and any amendments thereto, and that the statements contained under the heading
Additional U.S. Federal Income Tax Considerations in the Prospectus (and any similar
sections or information contained in the General Disclosure Package), are correct and
accurate in all material respects and present fairly and accurately the material aspects of
the federal income tax (i) treatment of the Company and (ii) considerations that are likely
to be material to a holder of the Notes.
In rendering such opinion, such counsel may rely as to matters governed by the laws of
states other than the laws of the State of Ohio, the corporate laws of the State of Delaware
or Federal laws on local counsel in such jurisdictions, provided that in such case such
counsel shall state that they believe that they and the Underwriters are justified in
relying on such other counsel and such other counsel shall indicate that the Underwriters
may rely on such opinion. As to matters of fact, to the extent they deem proper, such
counsel may rely on certificates of officers of the Company and public officials so long as
such counsel states that they have no reason to believe that either the Underwriters or they
are not justified in relying on such certificates. In addition to the matters set forth
above, the opinion of Shumaker, Loop & Kendrick, LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them to believe
that (a) the Registration Statement, as of the time of its effectiveness for purposes of
Section 11 of the Securities Act and as of the Applicable Time, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (b) the
General Disclosure Package, as of the Applicable Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading and
(c) the Prospectus, or any supplement thereto, as of its date and as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not
17
misleading (except that such counsel need express no view as to financial statements,
schedules and other financial data included therein). With respect to such statement,
Shumaker, Loop & Kendrick, LLP may state that this statement is based upon the procedures
set forth or incorporated by reference therein, but is without independent check and
verification.
(iv) The Representatives shall have received from Calfee, Halter & Griswold LLP,
counsel for the Underwriters, an opinion dated the Closing Date with respect to the
organization of the Company, the validity of the Indenture and the Notes, the Registration
Statement, the General Disclosure Package and the Prospectus, and other related matters as
the Representatives reasonably may request and such counsel shall have received such papers
and information as they reasonably request to enable them to pass upon such matters.
(v) At the time of execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a signed letter, in form and substance satisfactory to the
Representatives, dated the date hereof (a) confirming that they are an independent
registered public accounting firm with respect to the Company and its Subsidiaries within
the meaning of the Securities Act, the Rules and Regulations and the PCAOB and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (b) stating the conclusions and
findings of such firm with respect to the financial information examined by them and
included or incorporated by reference in the Registration Statement and the General
Disclosure Package and containing such other statements and information as is ordinarily
included in accountants comfort letters to underwriters in connection with registered
public offerings.
(vi) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the initial letter), the Company shall have furnished to the Representatives a
letter, in form and substance satisfactory to the Representatives (the bring-down letter),
of such accountants, dated the Closing Date, (a) confirming that they are an independent
registered public accounting firm with respect to the Company and its Subsidiaries within the
meaning of the Securities Act, the Rules and Regulations and the PCAOB and are in compliance
with the applicable requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (b) stating the conclusions and findings of such firm
with respect to the financial information and other matters covered by the initial letter and
the financial information examined by them and included in the Prospectus and (c) confirming
in all material respects the conclusions and findings set forth in the initial letter.
(vii) At the time of execution of this Agreement, the Representatives shall have
received from KPMG LLP a signed letter, in form and substance satisfactory to the
Representatives, dated the date hereof (a) confirming that they are an independent
registered public accounting firm with respect to FC-GEN Acquisition Holding as required by
Rule 101 of the Code of Professional Conduct of the AICPA and (b) stating the conclusions
and findings of such firm with respect to the financial information of FC-GEN Acquisition
Holding examined by them and included or incorporated by reference in the Registration
Statement and the General Disclosure Package and containing such other statements and
information as is ordinarily included in accountants comfort letters to underwriters in
connection with registered public offerings.
(viii) With respect to the letter of KPMG LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this Agreement (the
initial letter), the Company shall have furnished to the Representatives a letter, in form
and
18
substance satisfactory to the Representatives (the bring-down letter), of such
accountants, dated the Closing Date, (a) confirming that they are an independent registered
public accounting firm with respect to FC-GEN Acquisition Holding as required by Rule 101 of
the Code of Professional Conduct of the AICPA, (b) stating the conclusions and findings of
such firm with respect to the financial information and other matters covered by the initial
letter and the financial information examined by them and included in the Prospectus and (c)
confirming in all material respects the conclusions and findings set forth in the initial
letter.
(ix) The Representatives shall have received on the Closing Date a certificate or
certificates of the Chairman of the Board and Chief Executive Officer and the Senior Vice
President and Chief Financial Officer of the Company to the effect that on and as of the
Closing Date, each of them severally represents as follows:
(a) The Registration Statement has become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement or no
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus has been issued, and no proceedings for
such purpose have been taken or are, to his knowledge, contemplated by the
Commission.
(b) Subsequent to the delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been given
of (A) any intended or potential downgrading or (B) any review or possible change
that does not indicate an affirmation or improvement in the rating, if any, accorded
any securities of or guaranteed by the Company by any nationally recognized
statistical rating organization, as such term is defined for purposes of Rule
436(g)(2) of the Securities Act.
(c) He does not know of any litigation instituted or threatened against the
Company of a character required to be disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus which is not so disclosed therein or
in a document incorporated by reference therein; he does not know of any material
contract required to be filed as an exhibit to the Registration Statement which is
not so filed therein or in a document incorporated by reference therein.
(d) He has carefully examined the General Disclosure Package and any individual
Limited Use Free Writing Prospectus and, in his opinion, as of the Applicable Time,
the statements contained in the General Disclosure Package and any individual
Limited Use Free Writing Prospectus did not contain any untrue statement of a
material fact, and such General Disclosure Package and any individual Limited Use
Free Writing Prospectus, when considered together with the General Disclosure
Package, did not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.
(e) He has carefully examined the Registration Statement and the Prospectus and
in his opinion, as of the effective date of the Registration Statement, the
statements contained in the Registration Statement, including any document
incorporated by reference therein, were true and correct, and such Registration
Statement and Prospectus, or any document incorporated by reference therein, did not
omit to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading and, in his opinion, since the effective
date of the Registration Statement, no
19
event has occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such supplement or
amendment.
(f) The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the Closing Date as if made on such date. The
Company has performed all of its obligations under this Agreement as are to be
performed at or before the Closing Date. The representations and warranties made in
this clause (f) shall be deemed made by the Company.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects reasonably satisfactory to the
Representatives and to Calfee, Halter & Griswold LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of such
termination in writing or by telecopy at or prior to the Closing Date. In such event, the Company
and the Underwriters shall not be under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and
deliver the portion of the Notes required to be delivered as and when specified in this Agreement
are subject to the conditions that, at the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and in effect or proceedings therefor
initiated or threatened.
8. Indemnification.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
as such term is defined in Rule 501(b) under the Securities Act (each, an Affiliate), its
officers and directors, and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which such Underwriter or such Affiliate,
officer, director or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, or (b) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the case of the Registration Statement or any amendment
thereto, or in the case of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus or any amendment or supplement thereto, in light of the circumstances under
which they were made, and will reimburse each such Underwriter and each such Affiliate,
officer, director or controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such Affiliate, officer, director or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or
through the Representatives specifically for use in
20
the preparation thereof. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(ii) Each Underwriter, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the case of the Registration Statement or any amendment
thereto, or in the case of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus, or any amendment or supplement thereto, in the light of the circumstances
under which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use in the
preparation thereof as described in Section 13 of this Agreement. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to this
Section 8, such person (the indemnified party) shall promptly notify the person against
whom such indemnity may be sought (the indemnifying party) in writing; provided that the
failure to so notify will not relieve the indemnifying party from any liability that the
indemnifying party may have on account of the provisions of Sections 8(i) or (ii) or
otherwise, except to the extent that the indemnifying party shall not have otherwise learned
of such proceeding and such failure is materially prejudicial to the indemnifying party. In
case any such proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or (b) the
named parties to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them,
in which case the indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is
understood that
21
the indemnifying party shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties and one local counsel. Such firm shall be
designated in writing by the Representatives in the case of parties indemnified pursuant to
Section 8(i) and by the Company in the case of parties indemnified pursuant to Section
8(ii). No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in any pending
or threatened action, suit or proceeding in respect of which such indemnified party is a
party and indemnity was sought hereunder by such indemnified party, unless such settlement,
compromise or consent (x) includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and
(y) does not include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of such indemnified party. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the fifth sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent to which the indemnification obligations of
the Company hereunder are applicable if (a) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request and (b) such
indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement (unless the indemnified party is contesting in
good faith the amount so reimbursable).
(iv) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless to the extent required therein an indemnified party under
Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company
and the Underwriters from the offering of the Notes. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(iii) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Underwriters bear to the total proceeds of the offering (the
proceeds received by the Underwriters being equal to the total underwriting discounts and
commissions received by the Underwriters), in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
22
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 8(iv). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(iv) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8(iv), (a) no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Notes purchased by such
Underwriter and (b) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters obligations under
this Section 8(iv) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any supplement or
amendment thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served upon him or it
by any other contributing party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
9. Notices.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered or telecopied and confirmed as follows: if to the
Underwriters, to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park,
NY1-100-18-03, New York, New York 10036, Attention: High Grade Transaction Management/Legal; Fax:
(646) 855-5958, to J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179;
Attention: Investment Grade Syndicate Desk, Facsimile: (212) 834-6081, to UBS Securities LLC, 677
Washington Boulevard, Stamford, CT 06901, Attention: Fixed Income Syndicate, telephone: (203)
719-1088, or via fax at: (203) 719-0495, to Barclays Capital Inc., 745 Seventh Avenue, New York,
New York 10019, Attention: Syndicate Registration, Fax: (646) 834-8133, to Deutsche Bank Securities
Inc., 60 Wall Street New York, NY 10005, Attention: Debt Capital Markets-Syndicate Desk, Fax: (212)
797-2202, and to Wells Fargo Securities, LLC, 301 S. College Street, Charlotte, NC 28226,
Attention: Transaction Management, Facsimile: (704) 383-9165; if to the Company, to Health Care
REIT, Inc., 4500 Dorr Street, Toledo, Ohio 43615, or via fax at (419) 247-2826, Attention: George
L. Chapman, Chairman of the Board, Chief Executive Officer and President.
10. Termination.
This Agreement may be terminated by the Representatives by notice to the
Company as follows:
(i) at any time prior to the Closing Date if any of the following has occurred: (a)
since the date hereof, any adverse change or any development involving a prospective adverse
change in or affecting the condition, financial or otherwise, of the Company or the
earnings, business affairs, management or business prospects of the Company, whether or not
arising in the ordinary course of business, that, in your judgment, is material so as to
make the offering or delivery of the Notes impracticable or inadvisable, (b) any outbreak or
escalation of hostilities or declaration of war or national emergency after the date hereof
or other national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the
23
United States would, in your judgment, make the offering or delivery of the Notes
impracticable or inadvisable, (c) trading in securities generally on the NYSE, the NYSE Amex
Equities or the NASDAQ, or in the Companys securities on the NYSE, shall have been
suspended or materially limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for securities on any such exchange,
(d) the enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially or adversely
affect the business or operations of the Company, (e) declaration of a banking moratorium by
either federal or New York State authorities or material disruption in securities settlement
or clearance services in the United States, (f) any litigation or proceeding is pending or
threatened against any Underwriter which seeks to enjoin or otherwise restrain, or seeks
damages in connection with, or questions the legality or validity of this Agreement or the
transactions contemplated hereby, or (g) any downgrading, or the giving of any notice of (1)
any intended or potential downgrading or (2) any review or possible change that does not
indicate an affirmation or improvement in the rating, if any, accorded to any securities of
or guaranteed by the Company by any nationally recognized statistical rating organization,
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; or
(ii) as provided in Sections 6 and 11 of this Agreement.
11. Default by Underwriters.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on
such date (except in the event of a default on the part of the Company), and the aggregate
principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is ten percent or less of the aggregate principal amount of Notes to be
purchased on such date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Notes by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such arrangements are made
by the Closing Date, the other Underwriters shall be obligated severally in the proportions that
the principal amount of Notes set forth opposite their respective names in Schedule I hereto bears
to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify, to purchase the
Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on
such date. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Notes and the aggregate principal amount of Notes with respect to which such default
(except in the event of a default on the part of the Company) occurs is more than ten percent of
the aggregate principal amount of Notes to be purchased, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Notes are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Representatives or the Company shall have
the right to postpone the Closing, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, the General Disclosure Package or the
Prospectus or in any other documents or arrangements may be effected. As used in this Agreement,
the term Underwriter includes any person substituted for an Underwriter under this Section 11.
Any action taken under this Section 11 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term successors shall not include any
purchaser of the Notes merely because of such purchase.
24
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by the Underwriters to the Company for
inclusion in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus consists of the information set forth in the third and eighth through
tenth paragraphs under the caption Underwriting in the Prospectus.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained
in this Agreement and the representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Company or its directors or officers and (iii) delivery of and payment for the Notes
under this Agreement.
The Company hereby acknowledges that each of the Underwriters is acting solely as an
underwriter in connection with the purchase and sale of the Companys securities. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arms length basis and in no event do the
parties intend that any Underwriter act or be responsible as a fiduciary to the Company, its
management, stockholders, creditors or any other person in connection with any activity that any
Underwriter may undertake or has undertaken in furtherance of the purchase and sale of the
Companys securities, either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions, and the
Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including but not limited to any opinions or views with
respect to the price or market for the Companys securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York. The Company and the Underwriters each submits to the exclusive jurisdiction of the
courts of the State of New York located in the Borough of Manhattan in the City and County of New
York and the United States District Court for the Southern District of New York with respect to any
action or dispute in any way arising out of or relating to this Agreement. Each of the Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and
affiliates) and the Underwriters waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement.
[The remainder of this page is intentionally left blank.]
25
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the Underwriters in accordance with its terms.
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Very truly yours,
HEALTH CARE REIT, INC.
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By:
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/s/ Michael A. Crabtree
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Name:
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Michael A. Crabtree
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Title:
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Senior Vice President and Treasurer
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26
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES LLC
UBS SECURITIES LLC
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
WELLS FARGO SECURITIES, LLC
As Representatives of the Underwriters listed on Schedule I
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By:
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ Douglas A. Muller
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Name:
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Douglas A. Muller
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Title:
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Managing Director
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By:
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Maria Sramek
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Name:
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Maria Sramek
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Title:
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Executive Director
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By:
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UBS SECURITIES LLC
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By:
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/s/ Christopher Forshner
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Name:
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Christopher Forshner
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Title:
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Managing Director
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By:
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/s/ Mark Spadaccini
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Name:
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Mark Spadaccini
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Title:
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Associate Director
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By:
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BARCLAYS CAPITAL INC.
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By:
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/s/ Pamela Kendall
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Name:
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Pamela Kendall
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Title:
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Director
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27
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By:
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DEUTSCHE BANK SECURITIES INC.
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By:
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/s/ Jared Birnbaum
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Name:
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Jared Birnbaum
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Title:
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Director
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By:
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/s/ John C. McCabe
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Name:
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John C. McCabe
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Title:
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Director
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By:
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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28
SCHEDULE I
Schedule of Underwriters
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Amount of
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Amount of
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Amount of
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2016 Notes to
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2022 Notes to
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2041 Notes to
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Underwriter
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be Purchased
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be Purchased
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be Purchased
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UBS Securities LLC
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$
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104,000,000
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$
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156,000,000
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$
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104,000,000
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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$
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58,000,000
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$
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87,000,000
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$
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58,000,000
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J.P. Morgan Securities LLC
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$
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58,000,000
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$
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87,000,000
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$
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58,000,000
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Barclays Capital Inc.
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$
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58,000,000
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$
|
87,000,000
|
|
|
$
|
58,000,000
|
|
Deutsche Bank Securities Inc
|
|
$
|
58,000,000
|
|
|
$
|
87,000,000
|
|
|
$
|
58,000,000
|
|
Wells Fargo Securities, LLC
|
|
$
|
32,000,000
|
|
|
$
|
48,000,000
|
|
|
$
|
32,000,000
|
|
KeyBanc Capital Markets Inc.
|
|
$
|
32,000,000
|
|
|
$
|
48,000,000
|
|
|
$
|
32,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
400,000,000
|
|
|
$
|
600,000,000
|
|
|
$
|
400,000,000
|
|
SCHEDULE II
Pricing Term Sheet, dated March 9, 2011, as described on Schedule III.
SCHEDULE III
Pricing Term Sheet, dated March 9, 2011, as filed with the SEC as an Issuer Free Writing
Prospectus.
SCHEDULE IV
Schedule of Subsidiaries
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
100 Knoedler Road, LLC
|
|
Delaware
|
1011 E. Pecan Grove Road, LLC
|
|
Delaware
|
10225 Cypresswood Drive, LLC
|
|
Delaware
|
111 Lazelle Road East, LLC
|
|
Delaware
|
1118 N. Stoneman Avenue, LLC
|
|
Delaware
|
1205 North Church Street, LLC
|
|
Delaware
|
1221 Seventh Street, LLC
|
|
Delaware
|
12429 Scofield Farms Drive, LLC
|
|
Delaware
|
130 Buena Vista Street, LLC
|
|
Delaware
|
1329 Brown Street, LLC
|
|
Delaware
|
1340 N. Washington Boulevard, LLC
|
|
Delaware
|
1405 Limekiln Pike, LLC
|
|
Delaware
|
1425 Yorkland Road, LLC
|
|
Delaware
|
1460 Johnson Ferry Road, LLC
|
|
Delaware
|
14707 Northville Road, LLC
|
|
Delaware
|
1500 Borden Road, LLC
|
|
Delaware
|
1565 Virginia Ranch Road, LLC
|
|
Delaware
|
1625 W. Spring Street, LLC
|
|
Delaware
|
1710 S.W. Health Parkway, LLC
|
|
Delaware
|
17231 Mill Forest Road, LLC
|
|
Delaware
|
1785 Freshley Avenue, LLC
|
|
Delaware
|
1818 Martin Drive, LLC
|
|
Delaware
|
1850 Crown Park Court, LLC
|
|
Delaware
|
1920 Cleveland Road West, LLC
|
|
Delaware
|
200 E. Village Road, LLC
|
|
Delaware
|
2005 Route 22 West, LLC
|
|
Delaware
|
209 Merriman Road, L.L.C.
|
|
Delaware
|
2101 New Hope Street, LLC
|
|
Delaware
|
222 East Beech Street Jefferson, L.L.C.
|
|
Delaware
|
2281 Country Club Drive, LLC
|
|
Delaware
|
22955 Eastex Freeway, LLC
|
|
Delaware
|
23 Southpointe Drive, LLC
|
|
Delaware
|
2325 Rockwell Drive, LLC
|
|
Delaware
|
2341 W. Norvell Bryant Highway, LLC
|
|
Delaware
|
240 E. Third Street, LLC
|
|
Delaware
|
2416 Brentwood Street, LLC
|
|
Delaware
|
2695 Valleyview Boulevard, LLC
|
|
Delaware
|
2860 Country Drive, LLC
|
|
Delaware
|
311 E. Hawkins Parkway, LLC
|
|
Delaware
|
3200 West Slaughter Lane, LLC
|
|
Delaware
|
3434 Watters Road, LLC
|
|
Delaware
|
350 Locust Drive, LLC
|
|
Delaware
|
36101 Seaside Boulevard, LLC
|
|
Delaware
|
3625 Green Crest Street, LLC
|
|
Delaware
|
3921 North Main Street, LLC
|
|
Delaware
|
402 South Colonial Drive, LLC
|
|
Delaware
|
430 North Union Road, LLC
|
|
Delaware
|
4500 Dorr Street Holdings, LLC
|
|
Delaware
|
4855 Snyder Lane, LLC
|
|
Delaware
|
500 Seven Fields Boulevard, LLC
|
|
Delaware
|
515 Jack Martin Boulevard, LLC
|
|
Delaware
|
5165 Summit Ridge Court, LLC
|
|
Delaware
|
5166 Spanson Drive SE, LLC
|
|
Delaware
|
5437 Eisenhauer Road, LLC
|
|
Delaware
|
5521 Village Creek Drive, LLC
|
|
Delaware
|
5550 Old Jacksonville Highway, LLC
|
|
Delaware
|
5700 Karl Road, LLC
|
|
Delaware
|
5902 North Street, LLC
|
|
Delaware
|
655 Mansell Road, LLC
|
|
Delaware
|
721 Hickory Street, LLC
|
|
Delaware
|
7231 East Broadway, LLC
|
|
Delaware
|
731 Old Buck Lane, LLC
|
|
Delaware
|
750 North Collegiate Drive, LLC
|
|
Delaware
|
7950 Baybranch Drive, LLC
|
|
Delaware
|
799 Yellowstone Drive, LLC
|
|
Delaware
|
800 Oregon Street, LLC
|
|
Delaware
|
8503 Mystic Park, LLC
|
|
Delaware
|
8702 South Course Drive, LLC
|
|
Delaware
|
935 Union Lake Road, LLC
|
|
Delaware
|
965 Hager Drive, LLC
|
|
Delaware
|
9802 48th Drive NE, LLC
|
|
Delaware
|
AMCO I, LLC
|
|
Wisconsin
|
Anchor HCN Doylestown, LLC
|
|
Delaware
|
Anchor HCN Properties II, LLC
|
|
Delaware
|
Anchor HCN Properties, LLC
|
|
Delaware
|
Badger RE Portfolio I, LLC
|
|
Wisconsin
|
Badger RE Portfolio II, LLC
|
|
Wisconsin
|
Badger RE Portfolio III, LLC
|
|
Wisconsin
|
Badger RE Portfolio IV, LLC
|
|
Wisconsin
|
Badger RE Portfolio V, LLC
|
|
Wisconsin
|
BAL Colts Neck LLC
|
|
Delaware
|
BAL Fenwick Island LLC
|
|
Delaware
|
BAL Governors Crossing LLC
|
|
Delaware
|
BAL Holdings I, LLC
|
|
Delaware
|
BAL Holdings II, LLC
|
|
Delaware
|
BAL Holdings III, LLC
|
|
Delaware
|
BAL Holdings VII, LLC
|
|
Delaware
|
BAL Howell LLC
|
|
Delaware
|
BAL Longwood LLC
|
|
Pennsylvania
|
BAL Reflections LLC
|
|
Delaware
|
BAL Savoy Little Neck LLC
|
|
Delaware
|
BAL Sycamore LLC
|
|
Delaware
|
BAL Toms River LLC
|
|
Delaware
|
Ballard Healthcare Investors, LLC
|
|
Delaware
|
Bardstown Physicians LLC
|
|
Delaware
|
Bellevue Healthcare Properties, LLC
|
|
Delaware
|
Bellevue Physicians, LLC
|
|
Delaware
|
Boardman Physicians LLC
|
|
Delaware
|
Brandall Central Avenue, LLC
|
|
Delaware
|
Bridgeton Healthcare Investors, LLC
|
|
Delaware
|
Brierbrook Partners, L.L.C.
|
|
Tennessee
|
BSL Huntington Terrace LLC
|
|
Delaware
|
CAL-GAT Limited Partnership
|
|
Florida
|
CAL-LAK Limited Partnership
|
|
Florida
|
Cooper Holding, L.L.C.
|
|
Florida
|
Cooper, L.L.C.
|
|
Delaware
|
CRP/BWN Litchfield L.L.C.
|
|
Delaware
|
DePaul Physicians, LLC
|
|
Delaware
|
DRF Boardman LLC
|
|
Minnesota
|
DRF Bridgeton LLC
|
|
Minnesota
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
DRF Durango LLC
|
|
Minnesota
|
DRF Great Falls LLC
|
|
Minnesota
|
DRF Lenexa LLC
|
|
Minnesota
|
DRF Lincoln LLC
|
|
Minnesota
|
DRF LSL LLC
|
|
Minnesota
|
DRF Shawnee Mission LLC
|
|
Minnesota
|
DRF South Valley LLC
|
|
Minnesota
|
DRF Southwest Medical Building LLC
|
|
Minnesota
|
DRF Westminster LLC
|
|
Minnesota
|
DSG-2010 Loans I, Inc.
|
|
Delaware
|
Dublin Senior Community DRV, LLC
|
|
Oklahoma
|
Dublin Senior Community WPP, LLC
|
|
Oklahoma
|
FC HCN University Park, LLC
|
|
Delaware
|
FLA-PALM COURT, limited partnership
|
|
Florida
|
Forest City 40 Landsdowne, LLC
|
|
Delaware
|
Forest City 88 Sidney Street, LLC
|
|
Delaware
|
Frauenshuh Ballard LLC
|
|
Minnesota
|
Frauenshuh Bridgeton LLC
|
|
Minnesota
|
Frauenshuh Greeneville LLC
|
|
Minnesota
|
Frauenshuh HealthCare Properties, LLC
|
|
Delaware
|
Frauenshuh HealthCare Real Estate Solutions, LLC
|
|
Minnesota
|
Frauenshuh HealthCare Venture Properties, LLC
|
|
Delaware
|
Frauenshuh Killeen LLC
|
|
Minnesota
|
Gemini Davenport, LLC
|
|
Oklahoma
|
Gemini Las Colinas, L.L.C.
|
|
Oklahoma
|
Gemini Romeoville, LLC
|
|
Oklahoma
|
Gemini SS Lessee, LLC
|
|
Oklahoma
|
Gemini Villa Ventura, L.L.C.
|
|
Oklahoma
|
Gemini Wexford, L.L.C.
|
|
Oklahoma
|
Gig Harbor Physicians, LLC
|
|
Delaware
|
Grand Ledge I, LLC
|
|
Delaware
|
Great Falls Clinic Frauenshuh, LLC
|
|
Minnesota
|
Greeneville Healthcare Investors, LLC
|
|
Delaware
|
Hammes Company Green Bay I, LLC
|
|
Wisconsin
|
Hammes Company Green Bay II, LLC
|
|
Wisconsin
|
HC Mill Creek I, LLC
|
|
Washington
|
HC Redmond I, LLC
|
|
Wisconsin
|
HC Summit I, LLC
|
|
Wisconsin
|
HCN Access Holdings, LLC
|
|
Delaware
|
HCN Access Las Vegas I, LLC
|
|
Delaware
|
HCN Anchor Covington, LLC
|
|
Delaware
|
HCN BCC Holdings, Inc.
|
|
Delaware
|
HCN Capital Holdings, LLC
|
|
Delaware
|
HCN Development Services Group, Inc.
|
|
Indiana
|
HCN Emerald Holdings, LLC
|
|
Delaware
|
HCN FCE Life Sciences, LLC
|
|
Delaware
|
HCN Interra Lake Travis LTACH, LLC
|
|
Delaware
|
HCN Lake Travis Holdings, LLC
|
|
Delaware
|
HCN Lake Travis Property One, LLC
|
|
Delaware
|
HCN Lake Travis Property Two, LLC
|
|
Delaware
|
HCN Medicus Holdings, LLC
|
|
Delaware
|
HCN Navvis Clarkson Valley, LLC
|
|
Delaware
|
HCN Rendina Holdings, LLC
|
|
Delaware
|
HCN Rendina Merced, LLC
|
|
Delaware
|
HCN-TH Wisconsin I, LLC
|
|
Delaware
|
HCN-TH Wisconsin II, LLC
|
|
Delaware
|
HCN-TH Wisconsin III, LLC
|
|
Delaware
|
HCN-TH Wisconsin IV, LLC
|
|
Delaware
|
HCN-TH Wisconsin V, LLC
|
|
Delaware
|
HCN-TH Wisconsin VI, LLC
|
|
Delaware
|
HCN-TH Wisconsin VII, LLC
|
|
Delaware
|
HCN-TH Wisconsin VIII, LLC
|
|
Delaware
|
HCRE Solutions, LLC
|
|
Delaware
|
HCRI Abingdon Holdings, Inc.
|
|
North Carolina
|
HCRI Abingdon Properties, LP
|
|
North Carolina
|
HCRI Akron Properties, LLC
|
|
Delaware
|
HCRI Ancillary TRS, Inc.
|
|
Delaware
|
HCRI Asheboro Holdings, Inc.
|
|
North Carolina
|
HCRI Asheboro Properties, LP
|
|
North Carolina
|
HCRI Beachwood, Inc.
|
|
Ohio
|
HCRI Boardman Properties, LLC
|
|
Delaware
|
HCRI Broadview, Inc.
|
|
Ohio
|
HCRI Burlington Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Burlington Manor Properties, LP
|
|
North Carolina
|
HCRI Cold Spring Properties, LLC
|
|
Delaware
|
HCRI Concord Place Holdings, Inc.
|
|
North Carolina
|
HCRI Concord Place Properties, LP
|
|
North Carolina
|
HCRI Cumberland Properties, LLC
|
|
Delaware
|
HCRI Dayton Place Denver Properties, LLC
|
|
Delaware
|
HCRI Draper Place Properties Trust
|
|
Massachusetts
|
HCRI Drum Hill Properties, LLC
|
|
Delaware
|
HCRI Eddy Pond Properties Trust
|
|
Massachusetts
|
HCRI Eden Holdings, Inc.
|
|
North Carolina
|
HCRI Eden Properties, LP
|
|
North Carolina
|
HCRI Emerald Holdings, LLC
|
|
Delaware
|
HCRI Exchange Management I, LLC
|
|
Delaware
|
HCRI Exchange Properties I, LLC
|
|
Delaware
|
HCRI Fairmont Properties, LLC
|
|
Delaware
|
HCRI Financial Services, LLC
|
|
Delaware
|
HCRI Financing, Inc.
|
|
Delaware
|
HCRI Forest City Holdings, Inc.
|
|
North Carolina
|
HCRI Forest City Properties, LP
|
|
North Carolina
|
HCRI Gaston Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Gaston Manor Properties, LP
|
|
North Carolina
|
HCRI Greenville Holdings, Inc.
|
|
North Carolina
|
HCRI Greenville Properties, LP
|
|
North Carolina
|
HCRI High Point Manor Holdings, Inc.
|
|
North Carolina
|
HCRI High Point Manor Properties, LP
|
|
North Carolina
|
HCRI Holdings Trust
|
|
Massachusetts
|
HCRI Hunters Glen Properties, LLC
|
|
Delaware
|
HCRI Illinois Properties II, LLC
|
|
Delaware
|
HCRI Illinois Properties, LLC
|
|
Delaware
|
HCRI Indiana Properties, Inc.
|
|
Delaware
|
HCRI Indiana Properties, LLC
|
|
Indiana
|
HCRI Investments, Inc.
|
|
Delaware
|
HCRI Kansas Properties, LLC
|
|
Delaware
|
HCRI Kentucky Properties, LLC
|
|
Kentucky
|
HCRI Kirkland Properties, LLC
|
|
Delaware
|
HCRI Limited Holdings, Inc.
|
|
Delaware
|
HCRI Logistics, Inc.
|
|
Delaware
|
HCRI Louisiana Properties, L.P.
|
|
Delaware
|
HCRI Marina Place Properties Trust
|
|
Massachusetts
|
HCRI Maryland Properties, LLC
|
|
Maryland
|
HCRI Massachusetts Properties Trust
|
|
Massachusetts
|
HCRI Massachusetts Properties Trust II
|
|
Massachusetts
|
HCRI Massachusetts Properties, Inc.
|
|
Delaware
|
HCRI Merrillville Medical Facility, LLC
|
|
Delaware
|
HCRI Mississippi Properties, Inc.
|
|
Mississippi
|
HCRI Missouri Properties, LLC
|
|
Delaware
|
HCRI Nevada Properties, Inc.
|
|
Nevada
|
HCRI New Hampshire Properties, LLC
|
|
Delaware
|
HCRI North Carolina Properties I, Inc.
|
|
North Carolina
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
HCRI North Carolina Properties II, Inc.
|
|
North Carolina
|
HCRI North Carolina Properties III, Limited
Partnership
|
|
North Carolina
|
HCRI North Carolina Properties, LLC
|
|
Delaware
|
HCRI Pennsylvania Properties, Inc.
|
|
Pennsylvania
|
HCRI Prestonwood Medical Facility, LLC
|
|
Delaware
|
HCRI Provider Properties, LLC
|
|
Delaware
|
HCRI Ridgeland Pointe Properties, LLC
|
|
Delaware
|
HCRI Senior Housing Properties, Inc.
|
|
Delaware
|
HCRI Skeet Club Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Skeet Club Manor Properties, LP
|
|
North Carolina
|
HCRI Smithfield Holdings, Inc.
|
|
North Carolina
|
HCRI Smithfield Properties, LP
|
|
North Carolina
|
HCRI Southern Investments I, Inc.
|
|
Delaware
|
HCRI Statesville Place Holdings I, Inc.
|
|
North Carolina
|
HCRI Statesville Place Holdings II, Inc.
|
|
North Carolina
|
HCRI Statesville Place Properties I, LP
|
|
North Carolina
|
HCRI Statesville Place Properties II, LP
|
|
North Carolina
|
HCRI Summit Properties, LLC
|
|
Delaware
|
HCRI Tallahassee Medical Facility, LLC
|
|
Delaware
|
HCRI Tennessee Properties, Inc.
|
|
Delaware
|
HCRI Tennessee Properties, LLC
|
|
Delaware
|
HCRI Texas Properties, Inc.
|
|
Delaware
|
HCRI Texas Properties, Ltd.
|
|
Texas
|
HCRI TRS Acquirer II, LLC
|
|
Delaware
|
HCRI TRS Acquirer, LLC
|
|
Delaware
|
HCRI Tucson Properties, Inc.
|
|
Delaware
|
HCRI Van Nuys Medical Facility, LLC
|
|
Delaware
|
HCRI Weddington Park Holdings, Inc.
|
|
North Carolina
|
HCRI Weddington Park Properties, LP
|
|
North Carolina
|
HCRI Westlake, Inc.
|
|
Ohio
|
HCRI Wilburn Gardens Properties, LLC
|
|
Delaware
|
HCRI Wisconsin Properties, LLC
|
|
Wisconsin
|
Healthcare Property Managers of America, LLC
|
|
Florida
|
Heat Merger Sub, LLC
|
|
Delaware
|
Heat OP TRS, Inc.
|
|
Delaware
|
HH Florida, LLC
|
|
Delaware
|
Kaiser Gemini Burgundy, LLC
|
|
Oklahoma
|
Kaiser Gemini Woodland, LLC
|
|
Oklahoma
|
Killeen Healthcare Investors, LLC
|
|
Delaware
|
Lake Mead Medical Investors Limited Partnership
|
|
Florida
|
Lenexa Investors, LLC
|
|
Delaware
|
Med Properties Asset Group, L.L.C.
|
|
Indiana
|
Medical Real Estate Property Managers of America, LLC
|
|
Florida
|
Merrill Gardens Harbor Court, LLC
|
|
Washington
|
Merrill Gardens Windsor Manor, LLC
|
|
Washington
|
MG Landlord, LLC
|
|
Delaware
|
MG Tenant, LLC
|
|
Delaware
|
MGP 41, LLC
|
|
Delaware
|
MGP 42, LLC
|
|
Delaware
|
MGP 43, LLC
|
|
Delaware
|
MGP I, LLC
|
|
Washington
|
MGP V, LLC
|
|
Washington
|
MGP VI, LLC
|
|
Washington
|
MGP X, LLC
|
|
Wisconsin
|
MGP XI, LLC
|
|
Wisconsin
|
MGP XII, LLC
|
|
Wisconsin
|
MGP XIII, LLC
|
|
Wisconsin
|
MGP XIV, LLC
|
|
Wisconsin
|
MGP XIX, LLC
|
|
Washington
|
MGP XL, LLC
|
|
Washington
|
MGP XV, LLC
|
|
Wisconsin
|
MGP XVI, LLC
|
|
Wisconsin
|
MGP XVII, LLC
|
|
Washington
|
MGP XXIX, LLC
|
|
Washington
|
MGP XXV, LLC
|
|
Washington
|
MGP XXXII, LLC
|
|
Washington
|
MGP XXXIII, LLC
|
|
Washington
|
MGP XXXIX, LLC
|
|
Washington
|
MGP XXXVII, LLC
|
|
Washington
|
MGP XXXVIII, LLC
|
|
Washington
|
Midland I, LLC
|
|
Delaware
|
Midwest 108th & Q, LLC
|
|
Delaware
|
Midwest Ames, LLC
|
|
Delaware
|
Midwest Miracle Hills, LLC
|
|
Delaware
|
Midwest Prestwick, LLC
|
|
Delaware
|
Midwest Van Dorn, LLC
|
|
Delaware
|
Midwest Village of Columbus, LLC
|
|
Delaware
|
Midwest Windermere, LLC
|
|
Delaware
|
Midwest Woodbridge, LLC
|
|
Delaware
|
Mill Creek Real Estate Partners, LLC
|
|
Delaware
|
MIMA Real Estate, L.L.C.
|
|
Florida
|
Murrieta Healthcare Investors, LLC
|
|
Delaware
|
Murrieta Healthcare Properties, LLC
|
|
Delaware
|
Paramount Real Estate Services, Inc.
|
|
Delaware
|
Pennsylvania BCC Properties, Inc.
|
|
Pennsylvania
|
Petoskey I, LLC
|
|
Delaware
|
Petoskey II, LLC
|
|
Delaware
|
Plymouth I, LLC
|
|
Delaware
|
PVL Landlord Hattiesburg, LLC
|
|
Delaware
|
PVL Landlord STL Hills, LLC
|
|
Delaware
|
PVL Tenant STL Hills, LLC
|
|
Delaware
|
PVL Tenant- Hattiesburg, LLC
|
|
Delaware
|
Redmond Partners, LLC
|
|
Delaware
|
Senior Star Investments I, LLC
|
|
Delaware
|
Senior Star Tenant, LLC
|
|
Delaware
|
Shawnee Mission Investors, LLC
|
|
Delaware
|
Silverado Senior Living Alhambra, Inc.
|
|
California
|
Silverado Senior Living Azusa, Inc.
|
|
California
|
Silverado Senior Living Costa Mesa, Inc.
|
|
California
|
Silverado Senior Living Dallas, Inc.
|
|
Delaware
|
Silverado Senior Living Encinitas, Inc.
|
|
California
|
Silverado Senior Living Escondido, Inc.
|
|
California
|
Silverado Senior Living Houston, Inc.
|
|
Delaware
|
Silverado Senior Living Las Colinas, Inc.
|
|
Delaware
|
Silverado Senior Living Los Angeles, Inc.
|
|
California
|
Silverado Senior Living of Cypresswood, Inc.
|
|
Delaware
|
Silverado Senior Living of Kingwood, Inc.
|
|
Delaware
|
Silverado Senior Living of Sugarland, Inc.
|
|
Delaware
|
Silverado Senior Living of Woodlands, Inc.
|
|
Delaware
|
Silverado Senior Living Properties, Inc.
|
|
Delaware
|
Silverado Senior Living Redondo Beach, Inc.
|
|
California
|
Silverado Senior Living Salt Lake City, Inc.
|
|
Delaware
|
Silverado Senior Living San Juan Capistrano, Inc.
|
|
California
|
Silverado Senior Living Scottsdale, Inc.
|
|
Delaware
|
Silverado Senior Living Turtle Creek, Inc.
|
|
Delaware
|
Silverado Senior Living Tustin, Inc.
|
|
California
|
Silverado Senior Living, Inc.
|
|
California
|
South Valley Medical Building L.L.C.
|
|
Minnesota
|
South Valley Venture, LLC
|
|
Minnesota
|
SSL Aspen Park SPE, LLC
|
|
Delaware
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
SSL Landlord, LLC
|
|
Delaware
|
SSL Sponsor, LLC
|
|
Delaware
|
SSL Tenant, LLC
|
|
Delaware
|
St. Joseph Physicians, LLC
|
|
Delaware
|
Stafford Medical Office Pavilion, LLC
|
|
Delaware
|
Subtenant 10225 Cypresswood Drive, LLC
|
|
Delaware
|
Subtenant 1118 N. Stoneman Avenue, LLC
|
|
Delaware
|
Subtenant 1221 Seventh Street, LLC
|
|
Delaware
|
Subtenant 125 W. Sierra Madre Avenue, LLC
|
|
Delaware
|
Subtenant 1430 East 4500 South, LLC
|
|
Delaware
|
Subtenant 1500 Borden Road, LLC
|
|
Delaware
|
Subtenant 22955 Eastex Freeway, LLC
|
|
Delaware
|
Subtenant 240 E. Third Street, LLC
|
|
Delaware
|
Subtenant 30311 Camino Capistrano, LLC
|
|
Delaware
|
Subtenant 330 North Hayworth Avenue, LLC
|
|
Delaware
|
Subtenant 335 Saxony Road, LLC
|
|
Delaware
|
Subtenant 350 W. Bay Street, LLC
|
|
Delaware
|
Subtenant 3611 Dickason Avenue, LLC
|
|
Delaware
|
Subtenant 514 N. Prospect Avenue, LLC
|
|
Delaware
|
Subtenant 5521 Village Creek Drive, LLC
|
|
Delaware
|
Subtenant 7950 Baybranch Drive, LLC
|
|
Delaware
|
Subtenant 8855 West Valley Ranch Parkway, LLC
|
|
Delaware
|
Subtenant 9410 E. Thunderbird, LLC
|
|
Delaware
|
Voorhees Healthcare Properties, LLC
|
|
Delaware
|
Voorhees Physicians, LLC
|
|
Delaware
|
Warrior LP Holdco, LLC
|
|
Delaware
|
Waterstone I, LLC
|
|
Delaware
|
West Boynton Investors, LLLP
|
|
Florida
|
Westminster Junction Venture, LLC
|
|
Minnesota
|
White Lake I, LLC
|
|
Delaware
|
Windrose 310 Properties, L.L.C.
|
|
Tennessee
|
Windrose 4475 Sierra Properties, L.L.C.
|
|
Delaware
|
Windrose Aberdeen I Properties, L.L.C.
|
|
Florida
|
Windrose Aberdeen II Properties, L.L.C.
|
|
Delaware
|
Windrose Atrium Properties, L.L.C.
|
|
Delaware
|
Windrose AWPC II Properties, LLC
|
|
Delaware
|
Windrose AZ-Tempe Properties, LLC
|
|
Delaware
|
Windrose Bartlett Properties, LLC
|
|
Delaware
|
Windrose Bethesda Properties, LLC
|
|
Delaware
|
Windrose Biltmore Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical II Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical III Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical Properties, L.L.C.
|
|
Delaware
|
Windrose Claremore Properties, LLC
|
|
Delaware
|
Windrose Columbia Properties, Ltd.
|
|
Florida
|
Windrose Congress I Properties, L.P.
|
|
Delaware
|
Windrose Congress II Properties, L.P.
|
|
Delaware
|
Windrose Copley Properties, L.L.C.
|
|
Virginia
|
Windrose Coral Springs Properties, L.L.C.
|
|
Virginia
|
Windrose Cottonwood Properties, LLC
|
|
Delaware
|
Windrose Denton Properties, LLC
|
|
Delaware
|
Windrose Desert Springs Properties, L.P.
|
|
Delaware
|
Windrose East Valley Properties, LLC
|
|
Delaware
|
Windrose East West Properties, L.L.C.
|
|
Virginia
|
Windrose Fayetteville Properties, L.L.C.
|
|
Delaware
|
Windrose Fox Valley Properties, L.L.C.
|
|
Virginia
|
Windrose Frisco I Properties, LLC
|
|
Delaware
|
Windrose Frisco II Properties, LLC
|
|
Delaware
|
Windrose Glendale Properties, LLC
|
|
Delaware
|
Windrose Gwinnett I Properties, L.L.C.
|
|
Virginia
|
Windrose Lafayette Properties, L.L.C.
|
|
Delaware
|
Windrose Lake Mead Properties, L.L.C.
|
|
Virginia
|
Windrose Lakewood Properties, L.L.C.
|
|
Virginia
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Windrose Las Vegas Properties, LLC
|
|
Delaware
|
Windrose Los Alamitos Properties, LLC
|
|
Delaware
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Windrose Los Gatos Properties, L.L.C.
|
|
Virginia
|
Windrose Medical Properties Management, L.L.C.
|
|
Virginia
|
Windrose Medical Properties, L.P.
|
|
Virginia
|
Windrose Mount Vernon Properties, L.L.C.
|
|
Virginia
|
Windrose Niagara Falls Properties, LLC
|
|
Delaware
|
Windrose Northside Properties, Ltd.
|
|
Florida
|
Windrose Northwest Professional Plaza
Properties, LLC
|
|
Delaware
|
Windrose Ocala Urology Properties, L.L.C.
|
|
Virginia
|
Windrose Okatie I Properties, LLC
|
|
Delaware
|
Windrose Orange Centre Properties, LLC
|
|
Delaware
|
Windrose Orange Properties, L.L.C.
|
|
Delaware
|
Windrose Palm Court Properties, L.L.C.
|
|
Virginia
|
Windrose Palmer Properties, LLC
|
|
Delaware
|
Windrose Palms West III Properties, Ltd.
|
|
Florida
|
Windrose Palms West IV Properties, Ltd.
|
|
Florida
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Windrose Palms West V Properties, Ltd.
|
|
Florida
|
Windrose Park Medical Properties, L.L.C.
|
|
Virginia
|
Windrose Partell Medical Center, L.L.C.
|
|
Virginia
|
Windrose Physicians Plaza Properties, LLC
|
|
Delaware
|
Windrose Princeton Properties, L.L.C.
|
|
Delaware
|
Windrose Santa Anita Properties, L.L.C.
|
|
Delaware
|
Windrose Sierra Properties, Ltd.
|
|
Florida
|
Windrose Southlake Properties, LLC
|
|
Delaware
|
Windrose Southpointe Properties, L.L.C.
|
|
Delaware
|
Windrose Southside Properties, Ltd.
|
|
Florida
|
Windrose SPE Mount Vernon Properties, Inc.
|
|
Georgia
|
Windrose St. Louis I Properties, LLC
|
|
Delaware
|
Windrose St. Marys Medical Professional
Building, L.L.C.
|
|
Virginia
|
Windrose Trussville Properties, L.L.C.
|
|
Delaware
|
Windrose TSM I Properties, LLC
|
|
Delaware
|
Windrose Tucson Properties, LLC
|
|
Delaware
|
Windrose Tulsa Properties, L.L.C.
|
|
Delaware
|
Windrose Webster Properties, L.P.
|
|
Delaware
|
Windrose Wellington Properties, LLC
|
|
Delaware
|
Windrose Wellington Properties, Ltd.
|
|
Florida
|
Windrose West Boca Properties, Ltd.
|
|
Florida
|
Windrose West Seneca Properties, LLC
|
|
Delaware
|
Windrose West Tower Properties, Ltd.
|
|
Florida
|
Windrose Winn Way Properties, L.L.C.
|
|
Virginia
|
Windrose WPC Jupiter Properties, LLC
|
|
Delaware
|
Windrose WPC Properties, L.P.
|
|
Delaware
|
Windrose Yorkville Properties, L.L.C.
|
|
Virginia
|
WMP AWPC II Management, LLC
|
|
Delaware
|
WMP Bethesda Management, LLC
|
|
Delaware
|
WMP Boynton Beach Management, LLC
|
|
Delaware
|
WMP Cottonwood Management, LLC
|
|
Delaware
|
WMP East Valley Management, LLC
|
|
Delaware
|
WMP Niagara Falls Management, LLC
|
|
Delaware
|
WMP Northwest Professional Plaza
Management, LLC
|
|
Delaware
|
WMP Physicians Plaza Management, LLC
|
|
Delaware
|
WMP Southlake Management, LLC
|
|
Delaware
|
WMP TSM I Management, LLC
|
|
Delaware
|
WMP Wellington Management, LLC
|
|
Delaware
|
WMP West Seneca Management, LLC
|
|
Delaware
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
WMPT Aberdeen I Management, L.L.C.
|
|
Delaware
|
WMPT Aberdeen II Management, L.L.C.
|
|
Delaware
|
WMPT Atrium Management, L.L.C.
|
|
Delaware
|
WMPT AZ-Tempe Management, LLC
|
|
Delaware
|
WMPT Bartlett Management, LLC
|
|
Delaware
|
WMPT Bellaire HP Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire HP, L.P.
|
|
Virginia
|
WMPT Bellaire L.P.
|
|
Virginia
|
WMPT Bellaire POB Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire POB, L.P.
|
|
Virginia
|
WMPT Bellaire Properties, L.L.C.
|
|
Virginia
|
WMPT Boynton West Management, LLC
|
|
Delaware
|
WMPT Claremore Management, LLC
|
|
Delaware
|
WMPT Columbia Management, L.L.C.
|
|
Delaware
|
WMPT Congress I Management, L.L.C.
|
|
Delaware
|
WMPT Congress II Management, L.L.C.
|
|
Delaware
|
WMPT Denton Management, LLC
|
|
Delaware
|
WMPT Desert Springs Management, L.L.C.
|
|
Delaware
|
WMPT Frisco I Management, LLC
|
|
Delaware
|
WMPT Frisco II Management, LLC
|
|
Delaware
|
WMPT Glendale Management, LLC
|
|
Delaware
|
WMPT Gwinnett II Properties, L.L.C.
|
|
Delaware
|
WMPT Lafayette Management, L.L.C.
|
|
Delaware
|
WMPT Las Vegas Management, LLC
|
|
Delaware
|
WMPT Los Alamitos Management, LLC
|
|
Delaware
|
WMPT Northside Management, L.L.C.
|
|
Delaware
|
WMPT Okatie I Management, LLC
|
|
Delaware
|
WMPT Orange Centre Management, LLC
|
|
Delaware
|
WMPT Palmer Management, LLC
|
|
Delaware
|
WMPT Palms West III Management, L.L.C.
|
|
Delaware
|
WMPT Palms West IV Management, L.L.C.
|
|
Delaware
|
WMPT Palms West V Management, L.L.C.
|
|
Delaware
|
WMPT Pearland II Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland II, L.P.
|
|
Virginia
|
WMPT Pearland Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland, L.P.
|
|
Virginia
|
WMPT Princeton Management, L.L.C.
|
|
Delaware
|
WMPT Sacramento Properties, L.L.C.
|
|
Virginia
|
WMPT Sacramento, L.P.
|
|
Virginia
|
WMPT Santa Anita Management, L.L.C.
|
|
Delaware
|
WMPT Sierra Management, L.L.C.
|
|
Delaware
|
WMPT Southpointe Management, L.L.C.
|
|
Delaware
|
WMPT Southside Management, L.L.C.
|
|
Delaware
|
WMPT St. Louis I Management, LLC
|
|
Delaware
|
WMPT Stone Oak Properties, L.L.C.
|
|
Virginia
|
WMPT Stone Oak, L.P.
|
|
Virginia
|
WMPT Tomball Properties, L.L.C.
|
|
Virginia
|
WMPT Tomball, L.P.
|
|
Virginia
|
WMPT Trinity Properties, L.L.C.
|
|
Virginia
|
WMPT Trinity, L.P.
|
|
Virginia
|
WMPT Trussville Management, L.L.C.
|
|
Delaware
|
WMPT Tucson Management, LLC
|
|
Delaware
|
WMPT Tulsa Management, L.L.C.
|
|
Delaware
|
WMPT Webster Management, L.L.C.
|
|
Delaware
|
WMPT Wellington Management, L.L.C.
|
|
Delaware
|
WMPT West Boca Management, L.L.C.
|
|
Delaware
|
WMPT West Tower Management, L.L.C.
|
|
Delaware
|
WMPT WPC Jupiter Management, LLC
|
|
Delaware
|
WMPT WPC Management, L.L.C
|
|
Delaware
|
WTP Healthcare Properties, LLC
|
|
Delaware
|
Exhibit 4.2
SUPPLEMENTAL INDENTURE NO. 5
by and between
HEALTH CARE REIT, INC.
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
As of March 14, 2011
SUPPLEMENTAL TO THE INDENTURE DATED AS OF MARCH 15, 2010
HEALTH CARE REIT, INC.
3.625% Senior Notes due 2016
5.250% Senior Notes due 2022
6.500% Senior Notes due 2041
This SUPPLEMENTAL INDENTURE NO. 5 (this Supplemental Indenture) is made and entered into as
of March 14, 2011 between HEALTH CARE REIT, INC., a Delaware corporation (the Company), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and
existing under the laws of the United States of America, as Trustee (the Trustee).
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an Indenture, dated as of
March 15, 2010 (as amended, supplemented or otherwise modified from time to time, the Base
Indenture and, together with this Supplemental Indenture, as amended, supplemented or otherwise
modified from time to time, the Indenture) to provide for the future issuance of the Companys
senior debt securities (the Securities) to be issued from time to time in one or more series; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of each of three new series of its Securities, to be known respectively as its 3.625%
Senior Notes due 2016, its 5.250% Senior Notes due 2022 and its 6.500% Senior Notes due 2041, the
form and substance of such Securities and the terms, provisions and conditions thereof to be set
forth as provided in the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINED TERMS
Section 1.1
The following definitions supplement, and, to the extent inconsistent
with, replace the definitions in Section 101 of the Base Indenture:
Acquisition Termination Date means August 28, 2011; provided, however, in the event that, as
of such Acquisition Termination Date, the conditions to Closing (as defined in the Purchase
Agreement) set forth in Section 7.4 or Section 8.3 of the Purchase Agreement have not been
satisfied but remain capable of satisfaction and each of the other conditions to Closing set forth
in Article VII and Article VIII of the Purchase Agreement have been satisfied, waived or remain
capable of satisfaction, then either the Company or FC-GEN Investment, LLC may, by written notice
to the other, extend such Acquisition Termination Date until November 28, 2011; provided further,
however, that if the Purchase Agreement is terminated in accordance with its terms, the Acquisition
Termination Date shall be the date the Purchase Agreement is terminated.
Business Day means any day other than a Saturday or Sunday or a day on which banking
institutions in the City of New York are required or authorized to close.
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.
Cash means as to any Person, such Persons cash and cash equivalents, as defined in
accordance with GAAP consistently applied.
DTC means The Depository Trust Company located at 55 Water Street, 1SL, New York, New York,
10041-0099.
EBITDA means for any period, with respect to the Company and its subsidiaries 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.
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.
GAAP means generally accepted accounting principles.
Global Notes has the meaning specified in Section 2.1(a) of this Supplemental Indenture.
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
2
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.
Interest Payment Date with respect to the Notes is defined in Section 101 of the Base
Indenture and Section 2.1(b) of this Supplemental Indenture.
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.
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 means the Companys 3.625% Senior Notes due 2016 (the 2016 Notes), 5.250% Senior
Notes due 2022 (the 2022 Notes) and 6.500% Senior Notes due 2041 (the 2041 Notes) each issued
under the Indenture as a separate series. For the purposes of this Supplemental Indenture, unless
otherwise specified herein, references to the Notes shall be deemed to refer to each series of
Notes separately, and not to the 2016 Notes, the 2022 Notes and the 2041 Notes on any collective
basis.
Purchase Agreement means that certain equity purchase agreement, dated February 28, 2011, by
and among the Company, FC-GEN Investment, LLC and FC-GEN Operations Investment, LLC.
Regular Record Date with respect to the Notes is defined in Section 101 of the Base
Indenture and Section 2.1(b) of this Supplemental Indenture.
Reinvestment Rate means 0.25% in the case of the 2016 Notes, 0.30% in the case of the 2022
Notes and 0.35% in the case of the 2041 Notes, plus, in each case, 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
3
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.
Special Mandatory Redemption has the meaning specified in Section 2.1(e) of this
Supplemental Indenture.
Special Mandatory Redemption Date means the date which is 20 business days after the
Acquisition Termination Date.
Special Mandatory Redemption Price means 101% of the aggregate principal amount of the Notes
together with accrued and unpaid interest to but excluding the Special Mandatory Redemption Date.
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 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).
Subsidiary means any corporation or other entity of which a majority of (i) the voting power
of the voting equity securities or (ii) the outstanding equity interests of which are owned,
directly or indirectly, by the Company or one or more other Subsidiaries of the Company. For the
purposes of this definition, voting equity securities means equity securities having voting power
for the election of directors or similar functionaries, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
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.
4
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; provided, however, that Total Unencumbered Assets does not include
net real estate investments under unconsolidated joint ventures of the Company and its
Subsidiaries.
Unsecured Debt means Funded Indebtedness less Indebtedness secured by Liens on the property
or assets of the Company and its Subsidiaries.
ARTICLE 2
TERMS OF THE NOTES
Section 2.1
Pursuant to Section 301 of the Indenture, the Notes shall have the
following terms and conditions:
(a)
Title; Aggregate Principal Amount; Form of Notes
. The Notes shall be Registered
Securities under the Indenture each as a separate series, and shall be known respectively as the
Companys 3.625% Senior Notes due 2016, 5.250% Senior Notes due 2022 and 6.500% Senior Notes
due 2041. The 2016 Notes will be limited to an aggregate principal amount of $400,000,000, the
2022 Notes will be limited to an aggregate principal amount of $600,000,000 and the 2041 Notes will
be limited to an aggregate principal amount of $400,000,000. Each series shall be subject to the
right of the Company to reopen such series for issuances of additional securities of such series
and except (i) as provided in this Section and (ii) for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture and except for any Securities
which, pursuant to Section 303 of the Indenture, are deemed never to have been authenticated and
delivered hereunder. The 2016 Notes (together with the Trustees certificate of authentication)
shall be substantially in the form of Exhibit A hereto, the 2022 Notes (together with the Trustees
certificate of authentication) shall be substantially in the form of Exhibit B hereto and the 2041
Notes (together with the Trustees certificate of authentication) shall be substantially in the
form of Exhibit C hereto, each of which is hereby incorporated in and made a part of this
Supplemental Indenture.
The Notes will be issued in the form of one or more registered global securities without
coupons (Global Notes) that will be deposited with, or on behalf of, The Depository Trust Company
(DTC), and registered in the name of DTCs nominee, Cede & Co. Except under the circumstance
described below, the Notes will not be issuable in definitive form. Unless and until it is
exchanged in whole or in part for the individual notes represented thereby, a Global Note may not
be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any nominee of
such successor.
5
So long as DTC or its nominee is the registered owner of a Global Note, DTC or such nominee,
as the case may be, will be considered the sole owner or holder of the Notes represented by such
Global Note for all purposes under this Supplemental Indenture. Except as described below, owners
of beneficial interest in Notes evidenced by a Global Note will not be entitled to have any of the
individual Notes represented by such Global Note registered in their names, will not receive or be
entitled to receive physical delivery of any such Notes in definitive form and will not be
considered the owners or holders thereof under the Indenture or this Supplemental Indenture.
If DTC is at any time unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the Company will issue
individual Notes in exchange for the Global Note or Global Notes representing such Notes. In
addition, the Company may at any time and in its sole discretion, subject to certain limitations
set forth in the Indenture, determine not to have any of such Notes represented by one or more
Global Notes and, in such event, will issue individual Notes in exchange for the Global Note or
Global Notes representing the Notes. Individual Notes so issued will be issued in minimum
denominations of $2,000 and integral multiples of $1,000.
(b)
Interest and Interest Rate
.
(i) The 2016 Notes will bear interest at a rate of 3.625% per annum, from March 14,
2011 (or, in the case of 2016 Notes issued upon the reopening of this series, from the date
designated by the Company in connection with such reopening) or from the immediately
preceding 2016 Notes Interest Payment Date to which interest has been paid or duly provided
for, payable semiannually in arrears on each March 15 and September 15, commencing September
15, 2011 (each of which shall be a 2016 Notes Interest Payment Date), to the Persons in
whose names the 2016 Notes are registered in the Security Register at the close of business
on March 1 or September 1, as the case may be (whether or not a Business Day), next
preceding such 2016 Notes Interest Payment Date (each, a 2016 Notes Regular Record Date).
(ii) The 2022 Notes will bear interest at a rate of 5.250% per annum, from March 14,
2011 (or, in the case of 2022 Notes issued upon the reopening of this series, from the date
designated by the Company in connection with such reopening) or from the immediately
preceding 2022 Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually in arrears on each January 15 and July 15, commencing July 15, 2011
(each of which shall be a 2022 Notes Interest Payment Date), to the Persons in whose names
the 2022 Notes are registered in the Security Register at the close of business on January 1
or July 1, as the case may be (whether or not a Business Day), next preceding such 2022
Notes Interest Payment Date (each, a 2022 Notes Regular Record Date).
(iii) The 2041 Notes will bear interest at a rate of 6.500% per annum, from March 14,
2011 (or, in the case of 2041 Notes issued upon the reopening of this series, from the date
designated by the Company in connection with such reopening) or from the immediately
preceding 2041 Notes Interest Payment Date to which interest has been paid
6
or duly provided for, payable semiannually in arrears on each March 15 and September
15, commencing September 15, 2011 (each of which shall be a 2041 Notes Interest Payment
Date), to the Persons in whose names the 2041 Notes are registered in the Security Register
at the close of business on March 1 or September 1, as the case may be (whether or not a
Business Day), next preceding such 2041 Notes Interest Payment Date (each, a 2041 Notes
Regular Record Date).
(iv) For purposes of this Supplemental Indenture and the Notes, references herein or
therein to (A) an Interest Payment Date shall be deemed to refer to the applicable 2016
Notes Interest Payment Date, 2022 Notes Interest Payment Date or 2041 Interest Payment Date,
as the context so requires; and (B) a Regular Record Date shall be deemed to refer to the
applicable 2016 Notes Regular Record Date, 2022 Notes Regular Record Date or 2041 Notes
Regular Record Date, as the context so requires.
(c)
Principal Repayment; Currency
. The 2016 Notes will mature on March 15, 2016, the
2022 Notes will mature on January 15, 2022 and the 2041 Notes will mature on March 15, 2041;
provided, however, the Notes may be earlier redeemed at the option of the Company as provided in
paragraph (d) below. The principal of each Note payable on its maturity date shall be paid against
presentation and surrender thereof to Corporate Trust Operations of the Trustee, located at 111
Sanders Creek Parkway, East Syracuse, NY 13057, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public or private debts.
(d)
Redemption at the Option of the Company
. The Notes will be subject to redemption
at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than
60 days notice to each Holder of Notes to be redeemed at its address appearing in the Security
Register. If the Notes are redeemed, the redemption price will equal the sum of (i) the principal
amount of the Notes (or portion of such Notes) being redeemed, plus accrued and unpaid interest
thereon to but excluding the applicable Redemption Date, plus (ii) the Make-Whole Amount, if any;
provided, however, that if the 2022 Notes are redeemed 90 days or fewer prior to their maturity
date, the redemption price will equal 100% of the principal amount of the 2022 Notes (or portion of
such Notes) being redeemed plus accrued and unpaid interest thereon to but excluding the Redemption
Date; provided further, however, that if the 2041 Notes are redeemed 180 days or fewer prior to
their maturity date, the redemption price will equal 100% of the principal amount of the 2041 Notes
(or portion of such Notes) being redeemed plus accrued and unpaid interest thereon to but excluding
the Redemption Date.
(e)
Special Mandatory Redemption
. If, for any reason, the acquisition contemplated by
the Purchase Agreement is not completed on or prior to the Acquisition Termination Date, the
Company will be required to redeem the Notes on the Special Mandatory Redemption Date at the
Special Mandatory Redemption Price (a Special Mandatory Redemption).
Notice of a Special Mandatory Redemption will be mailed, with a copy to the Trustee, promptly
after the occurrence of the event triggering such redemption to each holder of Notes at its
registered address. If funds sufficient to pay the Special Mandatory Redemption Price of all of the
Notes to be redeemed on the Special Mandatory Redemption Date are deposited with the
7
Trustee, in its capacity as paying agent, on or before such Special Mandatory Redemption Date,
on and after such Special Mandatory Redemption Date, the Notes will cease to bear interest and,
other than the right to receive the Special Mandatory Redemption Price, all rights under the Notes
shall terminate.
(f)
Notices
. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by facsimile. Notices to the
Company shall be directed to it at 4500 Dorr Street, Toledo, Ohio 43615, Attention: General
Counsel; notices to the Trustee shall be directed to it at The Bank of New York Mellon Trust
Company, N.A., 525 Vine St., Suite 900, Cincinnati, Ohio 45202, Attention: Corporate Trust
Administration, Re: Health Care REIT, Inc. 3.625% Senior Notes due 2016, 5.250% Senior Notes due
2022 and/or 6.500% Senior Notes due 2041 (as applicable); or as to either party, at such other
address as shall be designated by such party in a written notice to the other party.
(g)
Global Note Legend
. Each Global Note shall bear the following legend on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER 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.
(h)
Applicability of Discharge, Defeasance and Covenant Defeasance Provisions
. The
Discharge, Defeasance and Covenant Defeasance provisions in Article Thirteen of the Indenture will
apply to the Notes.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.1
Holders of the Notes shall have the benefit of the following covenants, in
addition to the covenants of the Company set forth in Articles Eight and Ten of the Indenture:
(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:
8
(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
Companys 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;
(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, warehousemens, materialmens 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;
9
(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 Companys balance sheet as of December 31, 2001; 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
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 Companys 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.
(c) The Company will have or maintain, on a consolidated basis, as of the last day of each of
the Companys fiscal quarters, Interest Coverage of not less than 150%.
(d) The Company will maintain, as of the last day of each of the Companys 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.
10
(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 4
ADDITIONAL EVENTS OF DEFAULT
Section 4.1
For purposes of this Supplemental Indenture and the Notes, in addition to
the Events of Default set forth in Section 501 of the Indenture, each of the following also shall
constitute an Event of Default:
(a) default in the payment of the principal of or any premium on the Notes at Maturity;
(b) there shall occur a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other instrument of the Company
(including a default with respect to Securities of any series other than that series) under which
there may be issued or by which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly
responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in such indebtedness in an
aggregate principal amount exceeding $10,000,000 becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled, within a period of
10 days after there shall have been given, by first class mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least a majority in principal amount of the
Outstanding Notes a written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a Notice of Default under the Indenture; and
(c) the entry by a court of competent jurisdiction of one or more judgments, orders or
decrees against the Company or any of its Subsidiaries in an aggregate amount (excluding amounts
covered by insurance) in excess of $10,000,000 and such judgments, orders or decrees remain
undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by
insurance) in excess of $10,000,000 for a period of 30 consecutive days.
Section 4.2
Notwithstanding any provisions to the contrary in the Indenture, upon the
acceleration of the Notes in accordance with Section 502 of the Indenture, the amount immediately
due and payable in respect of the Notes shall equal the Outstanding principal amount thereof, plus
accrued and unpaid interest, plus the Make-Whole Amount.
11
ARTICLE 5
EFFECTIVENESS
Section 5.1
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 hereby, the Indenture is
hereby confirmed as being in full force and effect.
ARTICLE 6
NOTICE TO TRUSTEE
Section 6.1
Notwithstanding anything to the contrary in the Indenture including,
without limitation, Section 1102 thereof, in connection with the redemption at the election of the
Company of less than all the Notes, the Company shall notify the Trustee of the establishment of a
Redemption Date and the principal amount of Notes to be redeemed at least 60 days prior to such
Redemption Date unless a shorter period shall be satisfactory to the Trustee.
ARTICLE 7
MISCELLANEOUS
Section 7.1
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 provision hereof or any provision of the Indenture.
Section 7.2
To the extent that any terms of this Supplemental Indenture or the Notes
are inconsistent with the terms of the Indenture, the terms of this Supplemental Indenture or the
Notes shall govern and supersede such inconsistent terms.
Section 7.3
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
Section 7.4
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.
12
IN WITNESS WHEREOF, the Company and the Trustee have caused this Supplemental Indenture to be
executed in their respective corporate names as of the date first above written.
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HEALTH CARE REIT, INC.
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By:
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/s/ Michael A. Crabtree
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Name:
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Michael A. Crabtree
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Title:
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Senior Vice President and Treasurer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A., as Trustee
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By:
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/s/ Christian J. Pastura
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Name:
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Christian J. Pastura
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Title:
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Senior Associate
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EXHIBIT A
FORM OF NOTE
[Form of Face of Security]
HEALTH CARE REIT, INC.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER 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.
3.625% Senior Notes due 2016
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CUSIP No. 42217K AV8
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$400,000,000
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Health Care REIT, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Four Hundred Million Dollars on March 15, 2016, and to pay
interest thereon from March 14, 2011, or from the most recent 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, 2011 at the rate of 3.625% per annum, until the 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 such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) 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 will 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 (or one or more Predecessor Securities) 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 Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
A-1
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company 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 the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
No recourse under or upon any obligation, covenant or agreement contained in the 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.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed under its
corporate seal.
HEALTH CARE REIT, INC.
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
A-2
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A., as Trustee
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By:
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Authorized Signatory
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A-3
[Form of Reverse of Security]
1.
General
. This Security is 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 March 15, 2010 (as amended, supplemented or otherwise modified from time to
time, the Base Indenture), as supplemented by Supplemental Indenture No. 5, dated as of March 14,
2011, (as amended, supplemented or otherwise modified from time to time, the Supplemental
Indenture and the Base Indenture, as supplemented by such Supplemental Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee
(herein called the Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof.
2.
Optional Redemption
. The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, at any time or from time to time, as a
whole or in part, at the election of the Company. If the Securities are redeemed, the redemption
price will equal the sum of (i) the principal amount of the Securities (or portion of such
Securities) being redeemed, plus accrued and unpaid interest thereon to but excluding the
applicable Redemption Date, plus (ii) the Make-Whole Amount, if any.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
3.
Special Mandatory Redemption
. If, for any reason, the acquisition contemplated by
the Purchase Agreement is not completed on or prior to the Acquisition Termination Date, the
Company will be required to redeem the Securities on the Special Mandatory Redemption Date at the
Special Mandatory Redemption Price.
Notice of a Special Mandatory Redemption will be mailed, with a copy to the Trustee, promptly
after the occurrence of the event triggering such redemption to each holder of Securities at its
registered address. If funds sufficient to pay the Special Mandatory Redemption Price of all of the
Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee,
in its capacity as paying agent, on or before such Special Mandatory Redemption Date, on and after
such Special Mandatory Redemption Date, the Securities will cease to bear interest and, other than
the right to receive the Special Mandatory Redemption Price, all rights under the Security shall
terminate.
4.
Defeasance
. The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
A-4
5.
Defaults and Remedies
. If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the Indenture.
6.
Actions of Holders
. The 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 a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of 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
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 therefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
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 Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than a majority 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
premium or interest hereon on or after the respective due dates expressed herein.
7.
Payments Not Impaired
. No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
8.
Denominations, Transfer, Exchange
. As provided in the 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 where the principal of and any premium 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
A-5
and of like tenor, 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 minimum
denominations of $2,000 and any integral multiple of $1,000. As provided in the 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 and of like tenor 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.
9.
Persons Deemed Owners
. 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.
10.
Defined Terms
. All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
11.
Governing Law
. The Indenture and the Note shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said state.
12.
CUSIP Number
. 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 as a convenience to the Holders of the 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.
A-6
[ASSIGNMENT FORM]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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__________ Custodian _______
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TEN ENT
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as tenants by the entireties
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(Cust)
(Minor)
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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Under Uniform Gifts to Minors Act
___________
(State)
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Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
the within security and all rights thereunder, hereby irrevocably constituting and appointing
_____________________ Attorney to transfer said security on the books of the Company with full
power of substitution in the premises.
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Dated:
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Signed:
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Notice: The signature to this assignment
must correspond with the name as it appears
upon the face of the within security in
every particular, without alteration or
enlargement or any change whatever.
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Signature Guarantee*:
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* Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor acceptable to the
Trustee).
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A-7
EXHIBIT B
FORM OF NOTE
[Form of Face of Security]
HEALTH CARE REIT, INC.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER 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.
5.250% Senior Notes due 2022
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CUSIP No. 42217K AW6
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$600,000,000
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Health Care REIT, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Six Hundred Million Dollars on January 15, 2022, and to
pay interest thereon from March 14, 2011, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on January 15 and July 15 in
each year, commencing July 15, 2011 at the rate of 5.250% per annum, until the 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 such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the January 1 or July 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 will 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 (or one or more Predecessor Securities) 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 Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
B-1
of this series may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company 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 the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
No recourse under or upon any obligation, covenant or agreement contained in the 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.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed under its
corporate seal.
HEALTH CARE REIT, INC.
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
B-2
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A., as Trustee
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By:
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Authorized Signatory
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B-3
[Form of Reverse of Security]
1.
General
. This Security is 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 March 15, 2010 (as amended, supplemented or otherwise modified from time to
time, the Base Indenture), as supplemented by Supplemental Indenture No. 5, dated as of March 14,
2011, (as amended, supplemented or otherwise modified from time to time, the Supplemental
Indenture and the Base Indenture, as supplemented by such Supplemental Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee
(herein called the Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof.
2.
Optional Redemption
. The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, at any time or from time to time, as a
whole or in part, at the election of the Company. If the Securities are redeemed, the redemption
price will equal the sum of (i) the principal amount of the Securities (or portion of such
Securities) being redeemed, plus accrued and unpaid interest thereon to but excluding the
applicable Redemption Date, plus (ii) the Make-Whole Amount, if any; provided, however, that if the
Securities of this series are redeemed 90 days or fewer prior to their maturity date, the
redemption price will equal 100% of the principal amount of the Securities of this series (or
portion of such Securities) being redeemed plus accrued and unpaid interest thereon to but
excluding the Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
3.
Special Mandatory Redemption
. If, for any reason, the acquisition contemplated by
the Purchase Agreement is not completed on or prior to the Acquisition Termination Date, the
Company will be required to redeem the Securities on the Special Mandatory Redemption Date at the
Special Mandatory Redemption Price.
Notice of a Special Mandatory Redemption will be mailed, with a copy to the Trustee, promptly
after the occurrence of the event triggering such redemption to each holder of Securities at its
registered address. If funds sufficient to pay the Special Mandatory Redemption Price of all of the
Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee,
in its capacity as paying agent, on or before such Special Mandatory Redemption Date, on and after
such Special Mandatory Redemption Date, the Securities will cease to bear interest and, other than
the right to receive the Special Mandatory Redemption Price, all rights under the Security shall
terminate.
B-4
4.
Defeasance
. The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
5.
Defaults and Remedies
. If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the Indenture.
6.
Actions of Holders
. The 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 a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of 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
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 therefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
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 Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than a majority 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
premium or interest hereon on or after the respective due dates expressed herein.
7.
Payments Not Impaired
. No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
8.
Denominations, Transfer, Exchange
. As provided in the 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 where the principal of and any premium and interest on this Security are
B-5
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 and of like tenor,
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 minimum
denominations of $2,000 and any integral multiple of $1,000. As provided in the 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 and of like tenor 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.
9.
Persons Deemed Owners
. 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.
10.
Defined Terms
. All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
11.
Governing Law
. The Indenture and the Note shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said state.
12.
CUSIP Number
. 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 as a convenience to the Holders of the 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.
B-6
[ASSIGNMENT FORM]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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__________ Custodian _______
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TEN ENT
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as tenants by the entireties
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(Cust)
(Minor)
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JT TEN
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as joint tenants with right
of survivorship and not as tenants in
common
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|
|
|
Under Uniform Gifts to Minors Act
___________
(State)
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
the within security and all rights thereunder, hereby irrevocably constituting and appointing
_____________________ Attorney to transfer said security on the books of the Company with full
power of substitution in the premises.
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Dated:
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Signed:
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Notice: The signature to this assignment
must correspond with the name as it appears
upon the face of the within security in
every particular, without alteration or
enlargement or any change whatever.
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Signature Guarantee*:
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* Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor acceptable to the
Trustee).
|
B-7
EXHIBIT C
FORM OF NOTE
[Form of Face of Security]
HEALTH CARE REIT, INC.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER 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.
6.500% Senior Notes due 2041
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CUSIP No. 42217K AX4
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$400,000,000
|
Health Care REIT, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Four Hundred Million Dollars on March 15, 2041, and to pay
interest thereon from March 14, 2011, or from the most recent 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, 2011 at the rate of 6.500% per annum, until the 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 such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) 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 will 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 (or one or more Predecessor Securities) 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 Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
C-1
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company 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 the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
No recourse under or upon any obligation, covenant or agreement contained in the 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.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed under its
corporate seal.
HEALTH CARE REIT, INC.
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
C-2
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N. A., as Trustee
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By:
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Authorized Signatory
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C-3
[Form of Reverse of Security]
1.
General
. This Security is 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 March 15, 2010 (as amended, supplemented or otherwise modified from time to
time, the Base Indenture), as supplemented by Supplemental Indenture No. 5, dated as of March 14,
2011, (as amended, supplemented or otherwise modified from time to time, the Supplemental
Indenture and the Base Indenture, as supplemented by such Supplemental Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee
(herein called the Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof.
2.
Optional Redemption
. The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice by mail, at any time or from time to time, as a
whole or in part, at the election of the Company. If the Securities are redeemed, the redemption
price will equal the sum of (i) the principal amount of the Securities (or portion of such
Securities) being redeemed, plus accrued and unpaid interest thereon to but excluding the
applicable Redemption Date, plus (ii) the Make-Whole Amount, if any; provided, however, that if the
Securities of this series are redeemed 180 days or fewer prior to their maturity date, the
redemption price will equal 100% of the principal amount of the Securities of this series (or
portion of such Securities) being redeemed plus accrued and unpaid interest thereon to but
excluding the Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
3.
Special Mandatory Redemption
. If, for any reason, the acquisition contemplated by
the Purchase Agreement is not completed on or prior to the Acquisition Termination Date, the
Company will be required to redeem the Securities on the Special Mandatory Redemption Date at the
Special Mandatory Redemption Price.
Notice of a Special Mandatory Redemption will be mailed, with a copy to the Trustee, promptly
after the occurrence of the event triggering such redemption to each holder of Securities at its
registered address. If funds sufficient to pay the Special Mandatory Redemption Price of all of the
Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee,
in its capacity as paying agent, on or before such Special Mandatory Redemption Date, on and after
such Special Mandatory Redemption Date, the Securities will cease to bear interest and, other than
the right to receive the Special Mandatory Redemption Price, all rights under the Security shall
terminate.
C-4
4.
Defeasance
. The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.
5.
Defaults and Remedies
. If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the Indenture.
6.
Actions of Holders
. The 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 a majority in
principal amount of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of 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
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 therefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
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 Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than a majority 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
premium or interest hereon on or after the respective due dates expressed herein.
7.
Payments Not Impaired
. No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
8.
Denominations, Transfer, Exchange
. As provided in the 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 where the principal of and any premium and interest on this Security are
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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 and of like tenor,
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 minimum
denominations of $2,000 and any integral multiple of $1,000. As provided in the 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 and of like tenor 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.
9.
Persons Deemed Owners
. 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.
10.
Defined Terms
. All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
11.
Governing Law
. The Indenture and the Note shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said state.
12.
CUSIP Number
. 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 as a convenience to the Holders of the 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.
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[ASSIGNMENT FORM]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
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TEN COM
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as tenants in common
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UNIF GIFT MIN ACT
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__________ Custodian _______
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TEN ENT
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as tenants by the entireties
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(Cust)
(Minor)
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JT TEN
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as joint tenants with right
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Under Uniform Gifts to Minors Act
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of survivorship and not as tenants in
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___________
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common
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(State)
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Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
the within security and all rights thereunder, hereby irrevocably constituting and appointing
_____________________ Attorney to transfer said security on the books of the Company with full
power of substitution in the premises.
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Dated:
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Signed:
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Notice: The signature to this assignment
must correspond with the name as it appears
upon the face of the within security in
every particular, without alteration or
enlargement or any change whatever.
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Signature Guarantee*:
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* Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor acceptable to the
Trustee).
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