EXHIBIT 4.5(b)


 


 


FIRST SUPPLEMENTAL INDENTURE


 


by and among


 


HCN CANADIAN HOLDINGS-1 LP


as Issuer


 


and


 


WELLTOWER INC.


as Guarantor


 


and


 


BNY TRUST COMPANY OF CANADA


as Trustee


 


As of November 25, 2015


 


 


 


SUPPLEMENTAL TO THE INDENTURE DATED AS OF NOVEMBER 25, 2015


------------------------------------


 


 


HCN CANADIAN HOLDINGS-1 LP


 


3.35% Notes due 2020 


  





 







 












  





This FIRST SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”) is made and entered into as of
November 25, 2015
among HCN CANADIAN HOLDINGS-1 LP, an Ontario limited partnership (the “Issuer”),
WELLTOWER INC., a Delaware corporation (the “Guarantor” and together
with the Issuer, the “Obligors”), and BNY
TRUST COMPANY OF CANADA, a trust company
existing under the laws of Canada, as trustee (the “Trustee”).  


 


WITNESSETH THAT:


 


            WHEREAS,
the Obligors and the Trustee have executed and delivered an Indenture, dated as
of November 25, 2015
(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 Issuer’s 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 Issuer desires to provide for
the establishment of a new series of its Securities with the benefit of a
guarantee provided by the Guarantor, to be known as its 3.35%  Notes due 2020, 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:


 


             For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties covenant, declare and
agree for the equal and proportionate benefit of all Holders of the Securities
or of series thereof, as follows:


 


ARTICLE 1


 


DEFINED TERMS


 


            Section
1.1 The following definitions supplement, and, to the extent inconsistent
with, replace the definitions in Section 1.01 of the Base Indenture:


 


            “Applicable
Law” has the meaning specified in Section 7.6 of this Supplemental Indenture.


 


“Base Indenture” means the Indenture dated as of November 25, 2015 among the
Obligors and the Trustee, as amended, supplemented or otherwise modified from
time to time.


 


“Business Day” means any day other than a Saturday or Sunday or a day on
which banking institutions in the Province of Ontario are authorized or
required by law, regulation or executive order to close.


 


“Canada Yield Price” means in respect of any redemption or acceleration
of the Notes, a price calculated to provide a yield to maturity, compounded
semi-annually and calculated in accordance with generally accepted financial
practice, equal to the Government of Canada Yield on the third Business Day
prior to the redemption date of such Notes to the Holders pursuant to the
Indenture, plus 60 basis points. 


 


“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 




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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 Person’s cash and cash
equivalents, as defined in accordance with GAAP consistently applied.


 


“Code” means the Internal Revenue Code of 1986, as amended. 


 


“EBITDA” means for any period, with respect to the Guarantor 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: (i) interest, (ii) depreciation, (iii) amortization
and (iv) 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. 


 


 “FATCA” means Sections 1471 through 1474 of the Code and related
Treasury regulations and pronouncements (the Foreign Account Tax Compliance
Act) and Part XVIII of the Income Tax Act (Canada), as amended (the “Tax
Act”).


 


“FATCA Withholding Tax” means any FATCA withholding or deduction required
pursuant to an agreement described in Section 1471(b) of the Code or otherwise
imposed pursuant to Sections 1471 through 1474 of the Code and any regulations,
or agreements thereunder or official interpretations thereof or required by any
intergovernmental agreement between the United States and another jurisdiction
facilitating the implementation thereof (or any law implementing such an
intergovernmental agreement including Part XVIII of the Tax Act).


  


“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 of the United
States.


 


            “Global
Notes” has the meaning set forth in Section 2.1(a) of this Supplemental
Indenture.


 


            “Government
of Canada Yield” means, on any date, the bid-side yield to maturity on such
date as determined by the arithmetic average (rounded to three decimal places)
of the yields quoted at 10:00 a.m. (Toronto time) by any two investment dealers
in Canada acceptable to the Issuer, assuming semi-annual compounding and
calculated in accordance with generally accepted financial practice, which a
non-callable Government of Canada bond would carry if issued in Canadian
dollars in Canada at 100% of its principal amount on such date with a term to
maturity that most closely approximates the remaining term to maturity of such
Notes to be redeemed.


 


“Indebtedness” means, with respect to any Person, all: (i) 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; (ii) liabilities or obligations of others for which such Person
is directly or indirectly liable, by way of guarantee (whether by direct
guarantee, suretyship, discount, endorsement, take-or-pay agreement, agreement
to purchase 




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or advance or keep in funds or other
agreement having the effect of a guarantee) or otherwise; (iii) 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 (iv) liabilities
or obligations of such Person, direct or contingent, with respect to letters of
credit issued for the account of such Person and bankers acceptances created
for such Person. 


 


“Interest Coverage” means as of the last day of any fiscal quarter, the
quotient, expressed as a percentage (which may be in excess of 100%),
determined by dividing EBITDA by Interest Expense; all of the foregoing
calculated by reference to the immediately preceding four fiscal quarters of
the Guarantor 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 Guarantor outstanding at any time during such
period. 


 


            “Interest
Payment Date” with respect to the Notes is defined in Section 1.01 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 applicable laws of any jurisdiction. 


 


“Notes” means the Issuer’s 3.35% senior notes due 2020, issued under the
Indenture.


 


            “Regular
Record Date” with respect to the Notes is defined in Section 1.01 of the Base
Indenture and Section 2.1(b) of this Supplemental Indenture.


 


            “Senior
Debt” means all Indebtedness other than Subordinated Debt.


 


“Subordinated Debt” means any unsecured Indebtedness of the Guarantor
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 Guarantor, if so provided, to other Indebtedness of the
Guarantor, 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 Guarantor
or one or more other Subsidiaries of the Guarantor. 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. 


 


“Supplemental Indenture” means this First Supplemental
Indenture dated as of November 25, 2015 among the Obligors and the Trustee, as
amended, supplemented or otherwise modified from time to time.


 


“Total Assets” means on any date, the consolidated total
assets of the Guarantor and its Subsidiaries, as such amount would appear on a
consolidated balance sheet of the Guarantor prepared as of such date in
accordance with GAAP.


 


 




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“Total Unencumbered Assets”
means on any date, net real estate investments (valued on a book basis) of the
Guarantor and its Subsidiaries that are not subject to any Lien which secures
indebtedness for borrowed money of any of the Guarantor 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 Guarantor 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 Guarantor and its Subsidiaries.


 


“Unsecured Debt” means Funded Indebtedness less
Indebtedness secured by Liens on the property or assets of the Guarantor and
its Subsidiaries.


 


ARTICLE 2


 


TERMS OF THE NOTES


 


            Section
2.1 Pursuant to Section 3.01 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 and shall be known as the Issuer’s “3.35% Notes
due 2020.” The
Notes will be limited to an aggregate principal amount of Cdn$300,000,000,
subject to the right of the Issuer 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 3.05, 3.08, 3.09, 9.05 or 11.07 of the Indenture and except
for any Securities which, pursuant to Section 3.03 of the Indenture, are deemed
never to have been authenticated and delivered hereunder. The Notes (together
with the Trustee’s certificate of authentication) shall be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and made a
part of this Supplemental Indenture.


 


            The
Notes will be issued in the form of fully registered global securities without
coupons (“Global Notes”) that will be deposited with, or on behalf of,
CDS, and registered in the name of CDS or a nominee thereof. 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 CDS to a nominee of CDS or by a nominee of CDS to CDS or another
nominee of CDS or by CDS or any nominee of CDS to a successor depositary or any
nominee of such successor.


 


            So
long as CDS or its nominee is the registered owner of a Global Note, CDS 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
CDS is at any time unwilling, unable or ineligible to continue as depositary
and a successor depositary is not appointed by the Issuer within 120 days, the
Issuer will issue individual Notes in exchange for the Global Note or Global
Notes representing such Notes. In addition, the Issuer 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 




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Global Notes representing the Notes. Individual
Notes so issued will be issued in minimum denominations of Cdn$1,000 and
integral multiples of Cdn$1,000.


 


            (b)        Interest
and Interest Rate. The Notes will bear interest at a rate of 3.35% per
annum, from November 25, 2015
(or, in the case of Notes issued upon the reopening of this series of Notes,
from the date designated by the Issuer in connection with such reopening) or from
the immediately preceding Interest Payment Date to which interest has been paid
or duly provided for, payable semiannually in arrears on each May 25 and
November 25, commencing May 25, 2016 (each of which shall be an “Interest
Payment Date”), to the Persons in whose names the Notes are registered in
the Security Register at the close of business on the May 15 or November 15, as
the case may be (whether or not a Business Day), next preceding such Interest
Payment Date (each, a “Regular Record Date”).  


 


 (c)       Securities Guarantee. The payment of principal,
interest and certain other amounts on the Notes will be fully and
unconditionally guaranteed by the Guarantor on a senior unsecured basis as set
out in Article 5 of the Base Indenture. The endorsement of the Guarantor
contained in the Form of Global Note attached hereto as Exhibit A constitutes
notation of the Guarantee in accordance with Section 5.03 of the Base
Indenture.


 


(d)       Ranking.  The Notes will be the Issuer’s
unsecured and unsubordinated obligations and rank equal in right of payment
with all of the Issuer’s existing and future unsecured and unsubordinated
indebtedness.


 


(e)        No Sinking Fund.  No sinking fund will be provided with
respect to the Notes (notwithstanding any provisions of the Base Indenture with
respect to sinking fund obligations).


 


(f)        No Additional Amounts.  Any and all payments made by
the Issuer or the Guarantor with respect to the Notes shall be made without
withholding of or deduction for, or on account of, any present or future tax,
assessment or governmental charge required by applicable law. No additional
amounts will be payable with respect to any amount so withheld or deducted in
accordance with applicable law (notwithstanding any provisions of the Base
Indenture with respect to Additional Amount obligations), except those
Additional Amounts (as defined in the Base Indenture) payable by the Guarantor
pursuant to Section 5.01(f) of the Base Indenture as and when such Additional
Amounts are payable.


 


            (g)        Principal
Repayment; Currency. The Notes will mature on November 25, 2020 provided,
however, the Notes may be earlier redeemed at the option of the Issuer as
provided in paragraph (e) below. The principal of each Note payable on its
maturity date and any such interest shall be made at the office or agency of the
Paying Agent located at 320 Bay Street, Toronto, Ontario, M5H 4A6, in
such coin or currency of Canada as at the time of payment is legal tender for
the payment of public or private debts.


 


            (h)        Redemption
at the Option of the Issuer. The Notes will be subject to redemption at the
option of the Issuer, at any time in whole or from time to time in part, upon
not less than 15 nor
more than 30 days’ notice transmitted to each Holder of Notes to be redeemed as
shown in the Security Register. 


 


The redemption price will equal the greater of (i) 100% of the principal
amount of the Notes (or portion of such Notes) being redeemed, and (ii) the
Canada Yield Price, in each case plus accrued and unpaid interest thereon to
the date of redemption. 


 


            (i)         Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given three Business Days after the date of delivery
if mailed  or one Business Day after the date of delivery if transmitted by
facsimile. Notices to the Issuer shall be directed to it care of HCN Canadian
Holdings GP-1 Ltd. at 1175 Douglas Street, Ste. 1212, Victoria, British
Columbia, V9W 2E1, Attention: Matt 




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McQueen, Senior Vice
President, Legal; notices to the Guarantor shall be directed to it at 4500 Dorr
Street, Toledo, Ohio 43615, Attention: Matt McQueen, Senior Vice President,
Legal; notices to the Trustee shall be directed to it at 320 Bay Street,
Toronto, Ontario, M5H 4A6, Attention: Corporate Trust Administration re: HCN
Canadian Holdings-1 LP 3.35% Notes due 2020; or as to each party, at such other
address as shall be designated by such party in a written notice to the other
party. In addition to the foregoing, the Trustee agrees to accept and act upon
instructions or directions pursuant to the Indenture sent by unsecured e-mail,
pdf, facsimile transmission or other similar unsecured electronic methods,
provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions
and containing specimen signatures of such designated persons, which such
incumbency certificate shall be amended and replaced whenever a person is to be
added or deleted from the listing. If the Obligors elect to give the Trustee
e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions,
the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance with
such instructions notwithstanding such instructions’ conflict or are
inconsistent with a subsequent written instruction. The Obligors agree to
assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties. 


 


            (j)         Applicability
of Discharge, Defeasance and Covenant Defeasance Provisions. The Discharge,
Defeasance and Covenant Defeasance provisions in Article Fifteen of the Base
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 Obligors set forth in the Indenture:


 


(a)  The Guarantor will not pledge or otherwise subject to any Lien, any
property or assets of the Guarantor 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 other obligations shall be so secured;
provided, however, that such covenant shall not apply to the following: 


 


(i)  Liens securing obligations that do not in the
aggregate at any one time outstanding exceed 40% of the sum of (A) the Total
Assets of the Guarantor and its consolidated subsidiaries as of the end of the
calendar year or quarter covered in the Guarantor’s Annual Report on Form 10-K
or Quarterly Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Liens and (B) 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 Guarantor 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 Guarantor 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 Guarantor or its Subsidiaries), or leases to which the
Guarantor or any of its Subsidiaries is a party, or deposits to 




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secure public or statutory obligations of the Guarantor or
its Subsidiaries or deposits of cash or Canadian Government Obligations to
secure surety, appeal, performance or other similar bonds to which the
Guarantor or any of its Subsidiaries is a party, or deposits as security for
contested taxes or import duties or for the payment of rent; 


 


(iii)  Liens imposed by law, such as carriers’,
warehousemen’s, materialmen’s and mechanics’ liens, or Liens arising out of
judgments or awards against the Guarantor or any of its Subsidiaries which the
Guarantor 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 Guarantor or any Subsidiary or to the ownership of their respective
properties that were not incurred in connection with Indebtedness of the
Guarantor 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 Guarantor 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;


 


(vii)  Purchase money Liens on property acquired or held by
the Guarantor 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 Guarantor and its Subsidiaries
shall not at any time exceed U.S.$1,000,000; 


 


(viii)  Liens existing on the Guarantor’s 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 Guarantor will not create, assume, incur, or otherwise become
liable in respect of, any Indebtedness if the aggregate outstanding principal
amount of Indebtedness of the Guarantor 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 Guarantor and its consolidated subsidiaries as of the
end of the calendar year or quarter covered in the Guarantor’s Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the 




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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 Guarantor 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 Guarantor will have or maintain, on a consolidated basis, as of
the last day of each of the Guarantor’s fiscal quarters, Interest Coverage of
not less than 150%. 


 


(d)  The Guarantor will maintain, as of the last day of each of the
Guarantor’s fiscal quarters and at all times, Total Unencumbered Assets of not
less than 150% of the aggregate outstanding principal amount of the Unsecured
Debt of the Guarantor and its Subsidiaries on a consolidated basis.


 


(e)  For purposes of this Section 3, Indebtedness and Debt shall be
deemed to be “incurred” by the Guarantor or a Subsidiary whenever the Guarantor
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 7.01 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 an Obligor, or under any mortgage, indenture or
other instrument of an Obligor (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 an Obligor (or by any
Subsidiary, the repayment of which the Issuer has guaranteed or for which the
Issuer 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
U.S.$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 U.S.$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 or
electronically, as applicable, to the Obligors by the Trustee or to the
Obligors 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 Obligors, as applicable 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 Issuer, the Guarantor, or any of the
Guarantor’s or the Issuer’s 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.






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            Section
4.2 Notwithstanding any provisions to the contrary in the Indenture, upon
the acceleration of the Notes in accordance with Section 7.02 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 Canada Yield Price.


 


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 Obligors 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 13.02 thereof, in connection with the redemption at
the election of the Issuer, the Issuer shall notify the Trustee of the
establishment of a Redemption Date and the principal amount of Notes to be
redeemed at least 5 days prior to the date on which notice is transmitted under
Section 2.1(h), 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 Province of Ontario, except for Section 2.1(c)
hereof, which 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.


 


            Section
7.5 The Trustee shall not be responsible for the validity or sufficiency of
this Supplemental Indenture, or for the recitals contained herein, all of which
shall be taken as statements of the Obligors.


 


Section 7.6 In order
to comply with applicable tax laws, rules and regulations (inclusive of
directives, guidelines and interpretations promulgated by competent
authorities) in effect from time to time (“Applicable Law”), the Issuer
agrees (a) to provide to the Trustee sufficient information about Holders or
other applicable 




9












  





parties and/or transactions
(including any modification to the terms of such transactions) so the Trustee
can determine whether it has tax-related obligations under Applicable Law, (b)
that the Trustee shall be entitled to make any withholding or deduction from
payments under the Indenture to the extent necessary to comply with Applicable
Law for which the Trustee shall not have any liability, and (c) to hold
harmless the Trustee any losses it may suffer due to the actions it takes to
comply with such Applicable Law.  The terms of this Section 7.6 shall
survive the termination of the Indenture.


 


Section 7.7 The
Trustee shall be entitled to deduct FATCA Withholding Tax, and shall have no
obligation to gross-up any payment hereunder or to pay any additional amount as
a result of such FATCA Withholding Tax.


 


 





 







10












  





            IN WITNESS WHEREOF, the Obligors and the
Trustee have caused this Supplemental Indenture to be executed in their
respective corporate names as of the date first above written.


 


 


HCN CANADIAN HOLDINGS-1 LP, by its general partner HCN
Canadian Holdings GP-1 Ltd.


 


 


By:      /s/ Scott A. Estes                                             


Name:  Scott A. Estes


Title:    Executive Vice President and Chief Financial
Officer



 





11












  





WELLTOWER INC.


 


 


By:      /s/ Scott A. Estes                                             


Name:  Scott A. Estes 


Title:    Executive Vice President and Chief Financial
Officer



 





12












  





BNY TRUST COMPANY OF CANADA, as
Trustee


 


 


By:      /s/ Farhan Mir______                                      


Name: Farhan Mir


Title:    Authorized Signatory


 


  





 







13












  





Exhibit A


 


FORM OF GLOBAL NOTE


 


[Form of Face of
Security]






This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no transfer of
this Security in whole or in part may be registered, in the name of any Person
other than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture. Every Security authenticated and
delivered upon registration of, transfer of, in exchange for, or in lieu of,
this Security shall be a Global Security subject to the foregoing, except in
the limited circumstances described in the Indenture.


 


Unless this certificate is
presented by an authorized representative of CDS Clearing and Depository
Services Inc. (“CDS”) for registration of transfer, exchange or payment, and
any certificate issued in respect thereof is registered in the name of CDS
& CO., or in such other name as is requested by an authorized
representative of CDS (and any payment is made to CDS & CO. or to such
other entity as is requested by an authorized representative of CDS), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered holder hereof, CDS & CO., has a property
interest in the securities represented by this certificate herein and it is a
violation of its rights for another person to hold, transfer or deal with this
certificate.


 


HCN CANADIAN HOLDINGS-1
LP


 


3.35% Notes due November 25, 2020


Certificate No. 1


 


CUSIP No. 40416RAA2                                                                                       Cdn$300,000,000


 


            HCN Canadian
Holdings-1 LP, a limited partnership duly organized and existing under the laws
of Ontario (herein called the “Issuer,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CDS, or registered assigns, the principal
sum of three-hundred million dollars on November 25, 2015, and to pay interest
thereon from November 25, 2015 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on May 25 and
November 25 in each year, commencing May 25, 2016 at the rate of 3.35% 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 on the May 15 or November
15 (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 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.


 






1












  





            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 Issuer maintained for that
purpose in the Province of Ontario, or elsewhere as provided in the Indenture,
in such coin or currency of Canada as at the time of payment is legal tender
for payment of public and private debts; provided, however, that at the option
of the Issuer payment of interest may be made by electronic wire transfer or 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 General
Partner, in its capacity as general partner of the Issuer or of any successor,
either directly or through the Issuer 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 Issuer has caused this instrument
to be duly executed under its corporate seal.


 


Dated: l 


 


HCN CANADIAN HOLDINGS-1 LP, by its
general partner HCN Canadian Holdings GP-1 Ltd.


 


 


                                                                                    By:                                                                   


                        Name:



                        Title:



 









2












  





ENDORSEMENT
OF THE GUARANTOR


 


The Guarantor does hereby fully and unconditionally guarantee
the payment of principal, interest and certain other amounts on the Notes in
accordance with Section 2.1(c) of the Supplemental Indenture, and as set out in
Article 5 of the Base Indenture. This endorsement is intended to be attached to
the Global Note and, when so attached, shall constitute an endorsement thereof.


 


Dated:________________


	
   

  	
   

  	
  WELLTOWER INC.

  
	
  Per:

  	
   

  
	
   

  	
  Name: 
  

  
	
   

  	
  Title:     

  













3












  





CERTIFICATE
OF AUTHENTICATION


 


 


Dated:                                      


 


            This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.


 


BNY TRUST
COMPANY OF CANADA, as Trustee


 


 


By:                                                                                           


            Authorized Signatory


 


 


 


 





 






4












  





[Form of Reverse
of Security]


 


            1.         General. 
This Security is one of a duly authorized issue of securities of the Issuer
(herein called the “Securities”), issued and to be issued in one or more
series under an Indenture, dated as of November 25, 2015 (as amended, supplemented or otherwise modified from
time to time, the “Base Indenture”), as supplemented by First
Supplemental Indenture, dated as of November 25, 2015 (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”), among the
Issuer, the Guarantor and BNY Trust Company of Canada, 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 Issuer, the Guarantor, 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, at any time or from time to time, as a whole or in part,
at the election of the Issuer upon not less than 15 nor more than 30 days’
notice transmitted to each Holder. If the Securities are redeemed prior to maturity
the redemption price will equal the greater of (i) 100% of the principal amount
of the Securities (or portion of such Notes) being redeemed, and (ii) the
Canada Yield Price, in each case plus accrued and unpaid interest thereon to
the date of redemption.


 


            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.         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.


 


            4.         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.


 


            5.         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 Obligors and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Obligors and
the Trustee with the consent of the Holders of not less than 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 Obligors 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 




5












  





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.


 


            6.         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
Issuer, 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.


 


            7.         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 Issuer 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
Issuer and the Registrar duly executed by, the Holder hereof or his or her
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
denominations of Cdn$1,000 and any integral multiple of Cdn$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
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.


 


            8.         Persons
Deemed Owners. Prior to due presentment of this Security for registration
of transfer, the Issuer, the Trustee and any agent of the Issuer 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 Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.


 


            9.         Defined
Terms. All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.


 


            10.       Governing Law. The Indenture and
the Note shall be deemed to be a contract made under the laws of the Province
of Ontario, and for all purposes shall be construed in accordance with the laws
of said province, except for Article 5 of the Base Indenture and Section 2.1(c)
of the Supplemental Indenture, which shall be construed in accordance with the
laws of the state of New York. 


 


11.       CUSIP Number.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer 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.






6












  





 


REGISTRATION
PANEL


_______________________________________________________________________


(No
writing hereon except by the Trustee)


 


_______________________________________________________________________


Date
of Registry                     In Whose Name Registered                Signature
of Trustee


 


NOTATION
OF PARTIAL REDEMPTIONS


_______________________________________________________________________


(No
writing hereon except by the Trustee)


 


_______________________________________________________________________


Date  \  Amount Redeemed \ Balance
of Principal Amount Unpaid  \ Signature of Trustee


 









7












  





[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:


 




	
  TEN
  COM --     as tenants in common

  TEN
  ENT --       as tenants by the entireties

  JT
  TEN --           as joint tenants with right of survivorship                              and
  not as tenants in common

  	
  UNIF
  GIFT MIN ACT -- __________ Custodian  _______

                                                  (Cust)
                                     (Minor)

                                                  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 Issuer with full power of
substitution in the premises.


 


 


Dated:_________________________           Signed:__________________________________


 


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.


 


 


Signature
Guarantee*:_______________________


 


* Participant in a recognized
Signature


Guarantee Medallion Program (or
other


signature guarantor acceptable to
the


Trustee).


 


 








8