EXHIBIT 1.1
HEALTH CARE REIT, INC.
$150,000,000
8.0% Notes due 2012
UNDERWRITING AGREEMENT
September 6, 2002
Deutsche Bank Securities Inc.
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
31 West 52nd Street, 25th Floor
New York, New York 10019
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"), the
principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), to be issued under the Indenture specified in such schedule (the
"Indenture") between the Company and the trustee identified in such schedule
(the "Trustee").
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 the Securities set forth in Schedule I.
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 as follows:
(i) A registration statement on Form S-3 (File No. 333-73936)
with respect to the Securities has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the Rules and Regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and has been filed with the Commission
under the Securities Act. The Company has complied with the conditions
for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses (meeting
the requirements of Rule 430A of the Rules and Regulations) contained
therein, the exhibits, financial statements and schedules, as finally
amended and revised, and all documents incorporated by reference have
heretofore been delivered by the Company to you. Such registration
statement, herein referred to as the "Registration Statement," which
shall be deemed to include all information omitted therefrom in
reliance upon Rule 430A and contained in the Prospectus referred to
below and all information incorporated by reference therein, has been
declared effective by the Commission under the Securities Act and no
post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement; and the Registration Statement
and Prospectus as referred to below comply, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"). The
form of prospectus first filed by the Company with the Commission
pursuant to its Rule 424(b) and Rule 430A, or if no such filing is
required, the form of final prospectus included in the Registration
Statement at the time the Registration Statement is declared effective,
is herein referred to as the "Prospectus." Each preliminary prospectus
included in the Registration Statement prior to the time it becomes
effective is herein referred to as a "Preliminary Prospectus." Any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein and any supplements or amendments thereto filed with
the Commission as of the date of such Preliminary Prospectus or
Prospectus, as the case may be, and in the case of any reference herein
to any Preliminary Prospectus or Prospectus, also shall be deemed to
include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or Prospectus, and any supplements or amendments
thereto, filed with the Commission after the date of the filing of the
Prospectus under Rule 424(b) or 430A, and prior to the termination of
the offering of the Securities by the Underwriters. Any reference to
any amendment or supplement to any Preliminary Prospectus or
Prospectus, as the case may be, shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities and Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference
into such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference into the Registration Statement. Any reference to the
Prospectus herein shall be deemed to refer to and include the most
recent prospectus supplement filed with respect to the Securities.
(ii) The Company has been duly organized 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 Company 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 Securities or the enforceability of the Indenture or (c)
adversely affect the consummation of the transactions contemplated by
this Agreement (each of (a), (b) and (c) above, a "Material Adverse
Effect"); except for HCRI Pennsylvania Properties, Inc., HCRI Texas
Properties, Inc., HCRI Overlook Green, Inc., HCRI Nevada Properties,
Inc., Health Care REIT International, Inc., HCRI Southern Investments
I, Inc., HCN BCC Holdings, Inc., HCRI Tennessee Properties, Inc., HCRI
Limited Holdings, Inc., HCRI Texas Properties, Ltd., Pennsylvania BCC
Properties, Inc., HCN Atlantic GP, Inc., HCN Atlantic LP, Inc., HCRI
Louisiana Properties, L.P., HCRI North Carolina Properties, LLC, HCRI
Massachusetts Properties, Inc., HCRI Massachusetts Properties Trust,
HCRI Indiana Properties, Inc., HCRI Indiana Properties, LLC, HCRI
Holdings Trust, HCRI Maryland Properties LLC, HCRI Satyr Hill, LLC,
HCRI Friendship, LLC, HCRI St. Charles, LLC, HCRI Massachusetts
Properties Trust II, HCRI Beachwood, Inc., HCRI Broadview, Inc., HCRI
Westlake, Inc., HCRI Westmoreland, Inc., HCRI Wisconsin Properties,
LLC, HCRI North Carolina Properties I, Inc., HCRI North Carolina
Properties II, Inc., HCRI North Carolina Properties III, Limited
Partnership, HCRI Kentucky Properties, LLC, HCRI Laurel, LLC, HCRI
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Mississippi Properties, Inc., HCRI Illinois Properties, LLC and HCRI
Missouri Properties, LLC, the Company has no Subsidiaries.
(iii) The Securities have been duly authorized and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture, will be duly and validly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture and
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, the
limits of specific performance and injunctive relief, and the exercise
of judicial discretion (regardless of whether enforceability is
considered in a proceeding at law or in equity); the Indenture has been
duly authorized and qualified under 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 (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, the limits of specific performance and
injunctive relief, and the exercise of judicial discretion (regardless
of whether enforceability is considered in a proceeding at law or in
equity); and the Securities and the Indenture will conform to the
statements relating thereto contained in the Prospectus, and any
amendments and supplements thereto.
(iv) The Company's authorized, issued and outstanding
capitalization as of June 30, 2002 is set forth in the Prospectus; and
all of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable.
(v) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Securities nor instituted proceedings for that
purpose. The Registration Statement and the Prospectus, and any
amendments or supplements thereto, contain or will contain, all
statements which are required to be stated therein by, and in all
material respects conform to or will conform to, as the case may be,
the requirements of the Securities Act, the Rules and Regulations and
the Trust Indenture Act. The documents incorporated by reference in the
Prospectus, at the time they were or will be filed with the Commission,
conformed or will conform at the time of filing, in all material
respects to the requirements of the Exchange Act or the Securities Act,
as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto,
including any documents incorporated by reference therein, contains or
will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary 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 (a) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee, and (b) information
contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, or any documents
incorporated by reference therein, in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of
the Underwriters, specifically for use in the preparation thereof.
(vi) The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference
in the Registration Statement, present fairly the financial position
and the results of operations of the Company at the indicated dates and
for
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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. The summary financial and
statistical data included or incorporated by reference in the
Registration Statement present fairly 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.
(vii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or involving
any property of the Company before any court or administrative agency
which might reasonably be expected to result in any Material Adverse
Effect, except as set forth in the Registration Statement.
(viii) The Company 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 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) or which are not material in
amount or which do not interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages
to which the Company is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the Company 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 might reasonably be expected to result in any Material
Adverse Effect, and (b) conform to the descriptions thereof set forth
in the Registration Statement. Each mortgage which the Company holds on
the properties described in the Registration Statement constitutes a
valid mortgage lien for the benefit of the Company on such property.
(ix) 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.
(x) Since the date as of which information is given in the
Registration Statement, as it may be amended or supplemented, 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 or the earnings, business
affairs, management, or business prospects of the Company, whether or
not occurring in the ordinary course of business, and the Company has
not incurred any material liabilities or obligations and there has not
been any material transaction entered into by the Company, other than
transactions in the ordinary course of business and changes and
transactions contemplated by the Registration Statement, as it may be
amended or supplemented. The Company has no material contingent
obligations which are not disclosed in the Registration Statement, as
it may be amended or supplemented.
(xi) The Company is not (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 or the
Company's certificate of incorporation or by-laws, (b) in violation of
any statute, or (c) in violation of any order, rule or regulation
applicable to the Company 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
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sale of the Securities and the performance by the Company of all of the
provisions of its obligations under the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated and the fulfillment of the terms hereof and
thereof will not 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, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is
a party or by which the Company or the Company's properties may be
bound, or of the certificate of incorporation or by-laws of the Company
or any order, rule or regulation applicable to the Company or the
Company's properties or of any court or of any regulatory body,
administrative agency or other governmental body.
(xii) 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 for the filing of a prospectus supplement relating to
the Securities or such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Securities for public offering by the
Underwriters under state securities or Blue Sky laws) has been obtained
or made by the Company, and is in full force and effect.
(xiii) The Company holds all material licenses, certificates
and permits from governmental authorities which are necessary to the
conduct of its businesses and the Company has not 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.
(xiv) 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, 2001 and no transaction or other event
has occurred or is contemplated which would prevent the Company from so
qualifying for its current taxable year.
(xv) To the best of the Company's knowledge, Ernst & Young
LLP, 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, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(xvi) To the knowledge of the Company, after inquiry of its
officers and directors, there are no affiliations with the NASD among
the Company's officers, directors, or principal stockholders, except as
set forth in the Registration Statement or as otherwise disclosed in
writing to the Underwriters.
(xvii) This Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(xviii) 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 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 Securities. The
Company acknowledges that the Underwriters may engage in transactions
that
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stabilize, maintain or otherwise affect the price of the Securities,
including stabilizing bids, syndicate covering transactions and the
imposition of penalty bids.
(xix) The Company is not, and immediately after the sale of
the Securities pursuant to the terms and conditions of this Agreement
will not be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. 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 the Underwriters and
the Underwriters agree to purchase severally and not jointly from the Company
the principal amount of Securities set forth in Schedule I hereto at the
purchase price set forth in Schedule I hereto plus accrued interest, if any,
from the date specified in Schedule I hereto to the date of payment and
delivery.
Payment for the Securities to be sold hereunder is to be made
in New York Clearing House funds by federal funds wire transfer or by certified
or bank cashier's checks drawn to the order of the Company for the Securities to
be sold by it against delivery of the Securities to the Representatives. Such
payment and delivery are to be made at the offices of Deutsche Bank Securities
Inc., 31 52nd Street, 25th Floor, New York, New York, at 10:00 a.m. New York
time, on the third business day after the date of this Agreement or at such
other time and date not later than three business days thereafter as you 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 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). The
Securities will be registered in such names and in such denominations as the
Representatives request in writing not later than the second full business day
prior to the Closing Date, and will be delivered through book-entry facilities
of The Depository Trust Company ("DTC") and 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 Securities as soon as the
Representatives deem it advisable to do so. The Securities 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) of the Rules and Regulations, if the final
form of the prospectus is not included in the Registration Statement at
the time the Registration Statement is declared effective, a Prospectus
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A, if applicable,
of the Rules and Regulations, (b) use its best efforts to cause the
Registration Statement to remain in effect as to the Securities for so
long as the Representatives may deem necessary in order to complete the
distribution of the Securities, (c) not file any amendment to the
Registration Statement or supplement to 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
6
Securities and (d) 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 Securities by the
Underwriters; provided, however, that for each such report or
definitive proxy or information statement, the Company will not file
any such report 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 Rules and Regulations.
(ii) The Company will advise the Representatives promptly of
any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use
of 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 Securities, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, and the Company will use its best efforts to prevent (a)
the issuance of any such stop order preventing or suspending the use of
the Prospectus, or (b) any such suspension of the qualification of the
Securities for offering or sale in any jurisdiction, and to obtain as
soon as possible the lifting of any such stop order, if issued, or such
suspension of qualification.
(iii) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
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 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 deliver to the Representatives at or before the
Closing Date, six signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement, including documents incorporated by reference
therein, but without exhibits, and of all amendments thereto, as the
Representatives may reasonably request.
(iv) Subject to the provisions of Section 4(i) above, if
during the period in which a prospectus 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.
(v) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
security holders as soon as practicable an earnings statement for the
purpose of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
7
(vi) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports
and copies of all other documents, reports and information furnished by
the Company to its stockholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Securities Act or the Exchange Act. The Company will
deliver to the Representatives similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's financial
statements.
(vii) 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 Securities without the Representatives'
prior written consent.
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 Securities, including any expenses of the
Trustee; the fees payable to rating agencies in connection with the rating of
the Securities; accounting fees of the Company; 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, Preliminary
Prospectuses, the Prospectus, this Agreement, the Indenture and any supplements
or amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Securities; and the
fees incident to the listing of the Securities on any stock exchange. Any
transfer taxes imposed on the sale of the Securities to the 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)(h) 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 be due to the default or omission of any Underwriter, 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 Securities or in
contemplation of performing its 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 Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Securities 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 by the Commission.
(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 improvement in the rating, if any, accorded
any securities of or guaranteed by the
8
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 Prospectus.
(b) The Company 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 have a Material Adverse Effect.
(c) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus or a referenced amendment or supplement
thereto; the authorized shares of its Common Stock have been
duly authorized; the outstanding shares of its Common Stock
have been duly authorized and validly issued and are fully
paid and nonassessable.
(d) The Registration Statement has become effective
under the Securities Act and, to such counsel's knowledge no
stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Securities
Act.
(e) The Registration Statement, the Prospectus and
each amendment or supplement thereto and documents
incorporated by reference therein comply 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 applicable rules and regulations thereunder (except
that such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical
information included or incorporated by reference therein).
(f) The statements contained in the Prospectus under
the captions "Description of Notes" and "Description of Debt
Securities," insofar as such statements constitute a summary
of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present 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 Company's Annual Report on Form
10-K, and any amendments thereto, for the fiscal year ended
December 31, 2001 as to matters of law stated therein, have
been reviewed by such counsel and constitute fair summaries of
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 such contracts and
documents as are summarized in the Registration
9
Statement or the Prospectus or any amendment or supplement
thereto are fairly summarized 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 Prospectus or any amendment or supplement
thereto.
(j) The execution and delivery of this Agreement and
the Indenture and the consummation of the transactions herein
contemplated, including the issuance and sale of the
Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this
Agreement, do not and will not 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, or constitute a
default under, the certificate of incorporation or by-laws of
the Company, any material agreement or instrument known to
such counsel to which the Company is a party or by which the
Company or the Company's properties may be bound or any order
known to such counsel or rule or regulation applicable to the
Company or the Company's properties of any court or
governmental agency or body.
(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, the limits of specific performance and injunctive
relief, and the exercise of judicial discretion (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 Securities 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, the limits of specific
performance and injunctive relief, and the exercise of
judicial discretion (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(n) The Indenture and the Securities conform in all
material respects to the descriptions thereof contained in the
Registration Statement 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 of this Agreement
or the Indenture and the consummation of the transactions
contemplated this Agreement or the Indenture (other than (i)
the filing of a supplement to the Prospectus with the
Commission, and (ii) as may be required by the NASD or as
required by state securities and Blue Sky laws as to which
10
such counsel need express no opinion) except such as have been
obtained or made by the Company, specifying the same.
(p) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
In addition, such counsel will provide an opinion, based on
such counsel's own review of the Company's 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 counsel's
review of the Company's 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, 1998 through December 31, 2001, 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, 2002. Furthermore, such
counsel shall opine that the statements contained under the heading
"Taxation" in the Registration Statement or Prospectus and in the
Company's Annual Report on Form 10-K, and any amendments, for the
fiscal year ended December 31, 2001 are correct and accurate in all
material respects and present fairly and accurately the material
aspects of the federal income tax treatment of the Company and of its
stockholders.
In rendering such opinion, Shumaker, Loop & Kendrick, LLP may
rely as to matters governed by the laws of states other than the laws
of 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 Shumaker, Loop & Kendrick, LLP 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 Representatives or they are
not justified in relying on such certificates. In addition to the
matters set forth above, such opinion shall also include a statement to
the effect that nothing has come to the attention of such counsel which
leads them to believe that the Registration Statement, as of the time
it became effective under the Securities Act, the Prospectus or any
amendment or supplement thereto, on the date it was filed pursuant to
Rule 424(b), or any of the documents incorporated by reference therein,
as of the date of effectiveness of the Registration Statement or, in
the case of documents incorporated by reference into the Prospectus
after the date of effectiveness of the Registration Statement, as of
the date when such document was filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, or any of the
documents incorporated by reference therein, as of the date of
effectiveness of the Registration Statement or, in the case of
documents incorporated by reference into the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective
date when such documents were filed with the Commission, or as of the
Closing Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading (except that such counsel
need express no view as to financial statements, schedules and other
financial or statistical information included therein). With respect to
such statement,
11
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 Securities, the Registration
Statement, 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) The Representatives shall have received on the Closing
Date, a signed letter from Ernst & Young LLP, dated the Closing Date,
which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter, dated September 6, 2002, signed by
such firm and delivered to the Representatives by Ernst & Young LLP,
that nothing has come to their attention during the period from the
date five days prior to the date hereof, to a date not more than five
days prior to the Closing Date, which would require any change in its
letter dated September 6, 2002 if it were required to be dated and
delivered on the Closing Date. All such letters shall be in form and
substance satisfactory to the Representatives.
(vii) 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 President and Chief Financial Officer
of the Company to the effect that 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 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 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 which is not so
disclosed; he does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date.
(d) 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
12
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.
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 telegram 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 Securities 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 officers and directors, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act
against any losses, claims, damages or liabilities to which such
Underwriter or such 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, the Prospectus or
any amendment or supplement thereto, (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 light of
the circumstances under which they were made, or (c) any act or failure
to act, or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the
offering contemplated hereby, and will reimburse each such Underwriter
and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such 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, 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; and
provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter, its
officers and directors, or any person controlling the Underwriter on
account of any loss, claim, damage, liability or action arising from
the sale of any Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in
the Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(iv) or Section
13
4(v). 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 the Securities
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,
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 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, 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. 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. No
indemnification provided for in Sections 8(i) or (ii) shall be
available to any party who shall fail to give notice as provided in
this Section 8(iii) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties
from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of the provisions of
Sections 8(i) or (ii). 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 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
14
for all such indemnified parties. Such firm shall be designated in
writing by you 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). 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.
(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
Securities. 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.
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 Securities
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
15
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in 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, 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 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 telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., 31 52nd Street, 25th Floor, New York, New York, 10019, Attention: John W.
Patterson; if to the Company, to Health Care REIT, Inc., One SeaGate, Suite
1500, Toledo, Ohio 43603-1475, Attention: George L. Chapman, Chairman of the
Board and Chief Executive Officer.
10. TERMINATION. This Agreement may be terminated by you 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 as of which information is
given in the Prospectus, any material adverse change or any development
involving a prospective material 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, (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 United States would,
in your judgment, make the offering or delivery of the Securities
impracticable or inadvisable, (c) trading in securities generally or in
the Company's securities on the New York Stock Exchange or the American
Stock Exchange 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 either 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) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the
securities markets in the United States, (g) 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 (h) any downgrading in the rating
of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Exchange Act); or
(ii) as provided in Section 6 of this Agreement.
16
11. DEFAULT OF UNDERWRITERS. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities 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 Securities
set forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than ten per cent of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Securities 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 and in 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 Securities merely because of such purchase.
13. 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 Securities under this Agreement.
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 remainder of this page intentionally left blank.]
17
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.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ George L. Chapman
---------------------
Name: George L. Chapman
Title: Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
AS REPRESENTATIVES OF THE UNDERWRITERS LISTED ON SCHEDULE I
BY: DEUTSCHE BANK SECURITIES INC.
By: /s/ John W. Patterson
---------------------
Name: John W. Patterson
Title: Managing Director
By: /s/ David M. DeMartino
-------------------------
Name: David M. DeMartino
Title: Associate
BY: UBS WARBURG LLC
By: /s/ David Gately
----------------
Name: David Gately
Title: Managing Director
18
SCHEDULE I
Underwriters: Deutsche Bank Securities Inc.
UBS Warburg LLC
Underwriting Agreement Date: September 6, 2002
Registration Statement No.: 333-73936
Title of Securities: 8.0% Senior Notes due September 12, 2012
(the "Notes")
Aggregate Principle Amount: $150,000,000
Price to Public: 99.5% of the principal amount of the Notes
Underwriting Discount: 1.0%
Purchase Price to Underwriter: 98.5% of the principal amount of the Notes
Indenture: Indenture, dated as of September 12, 2002,
as amended by the Supplemental Indenture No.
1, between Health Care REIT, Inc. and The
Fifth Third Bank
Trustee: The Fifth Third Bank
Maturity: September 12, 2012
Interest Rate: 8.0%
Interest Payment Dates: March 12 and September 12
Optional Redemption Provisions: Make-Whole provision (T+25bps)
Sinking Fund Provisions: No
Closing Date and Time of Delivery: September 12, 2002
Closing Location: Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
19
SCHEDULE II
SCHEDULE OF UNDERWRITERS
AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
- ----------- ------------
Deutsche Bank Securities Inc.................. $56,250,000
UBS Warburg LLC............................... $48,750,000
Banc of America Securities LLC................ $22,500,000
Legg Mason Wood Walker, Incorporated.......... $11,250,000
Raymond James & Associates, Inc............... $11,250,000
-----------
Total................................ $150,000,000
============
20