EXHIBIT 1.1
EXECUTION COPY
HEALTH CARE REIT, INC.
$250,000,000
5.875% Notes due May 15, 2015
UNDERWRITING AGREEMENT
April 26, 2005
Banc of America Securities LLC
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
60 Wall Street, 3rd Floor
New York, New York 10005
Ladies and Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters (the "Underwriters") named in Schedule I
hereto for whom you are acting as representatives (the "Representatives"),
$250,000,000 in principal amount of its debt securities identified in Schedule
II 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, acting severally and not jointly, the Securities set forth
in Schedule I hereto.
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. 333-107280)
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 (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder. 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 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 include the most recent prospectus supplement filed with
respect to the Securities and shall also be deemed to include any
documents incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the Securities Act.
(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 (as
defined below), 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"). All of the Company's subsidiaries
are listed in Schedule III attached hereto (the "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
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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 December 31, 2004 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. As of the date it became effective, the Registration Statement
contained, and the Prospectus, and any amendments or supplements
thereto will contain, as of the date the Prospectus, such amendment or
supplement is filed with the Commission, 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 Trust Indenture Act and the rules and regulations
of the Commission thereunder. The documents incorporated by reference
in the Prospectus, at the time they were or will be filed with the
Commission, as the case may be, 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. The Registration Statement did not, as of
the date it became effective, contain and any amendment thereto,
including any documents incorporated by reference therein, will not
contain, any untrue statement of a material fact and did not omit and
will not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. The
Prospectus and any amendments or supplements thereto, as of the date of
the Prospectus, the date such amendment or supplement is filed with the
Commission and the Closing Date, including any documents incorporated
by reference therein, do not contain and will not contain, as the case
may be, any untrue statement of a material fact and do not omit and
will not omit to state any material fact 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 and its Subsidiaries at
the indicated dates and for the indicated periods. Such financial
statements and the related notes and schedules have been prepared in
accordance with generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments necessary
for a fair
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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 (a) against the Company or its
Subsidiaries or (b) involving any property of the Company or its
Subsidiaries 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, together with its Subsidiaries, has good and
marketable title to all of the properties and assets reflected in the
financial statements hereinabove described (or as described in the
Registration Statement 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 or
any of its Subsidiaries is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the Company, its
Subsidiaries and, to the knowledge of the Company, of all other parties
thereto, and the Company knows of no default or defenses currently
existing with respect thereto which 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 or any of its Subsidiaries holds on the
properties described in the Registration Statement constitutes a valid
mortgage lien for the benefit of the Company or its Subsidiary, as the
case may be, 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 respective dates 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 in violation of its charter or
by-laws. No Subsidiary is in violation of its charter or by-laws, which
violation will have, or after any required notice and passage of any
applicable grace period would have, a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries are (a) in default under any
agreement, lease, contract, indenture or other instrument or obligation
to which it is a party or by which it or any of its properties is
bound, (b) in violation of any statute, or (c) in violation of any
order, rule or regulation applicable to the Company, its Subsidiaries
or its properties, of any court or of any
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regulatory body, administrative agency or other governmental body, any
of which defaults or violations described in clauses (a) through (c)
will have, or after any required notice and passage of any applicable
grace period would have, a Material Adverse Effect. The issue and sale
of the 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, or
any of its Subsidiaries, is a party or by which it is a party or which
it or any of its properties may be bound, or a violation of its charter
or by-laws or any order, rule or regulation applicable to the Company,
its Subsidiaries or its properties 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 and its Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses and neither the
Company nor any of its Subsidiaries have received any notice of
infringement or of conflict with asserted rights of others with respect
to any patents, patent rights, trade names, trademarks or copyrights,
which infringement is material to the business of the Company and its
Subsidiaries.
(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, 2004 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) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (a) transactions are executed in accordance with
management's general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (c) access to assets is permitted
only in accordance with management's general or specific authorization;
and (d) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(xvii) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rules 13a-14 and
15d-14 under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the Company's
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company's auditors and the Audit Committee of the Board of Directors of
the Company have been advised of: (a) any significant deficiencies in
the design or operation of internal controls which could adversely
affect the Company's ability to record, process, summarize, and report
financial data; and (b) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's
internal controls; any material weaknesses in internal controls have
been identified for the Company's auditors; and since the date of the
most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and
material weaknesses.
(xviii) Since July 30, 2002, the Company has not, directly or
indirectly, including through any subsidiary: (a) extended credit,
arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (b) made any material
modification, including any renewal thereof, to any term of any
personal loan to any director or executive officer of the Company, or
any family member or affiliate of any director or executive officer,
which loan was outstanding on July 30, 2002.
(xix) To the knowledge of the Company, after inquiry of its
officers and directors, there are no affiliations with any NASD member
firm 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.
(xx) This Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(xxi) 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 stabilize,
maintain or otherwise affect the price of the Securities, including
stabilizing bids, syndicate covering transactions and the imposition of
penalty bids.
(xxii) 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 each Underwriter,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto (plus any additional principal amount of
Securities which such Underwriter may
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become obligated to purchase pursuant to the provisions of Section 11 hereof) at
a purchase price of 99.061% of the principal amount thereof.
Payment of the purchase price for, and delivery of certificate(s) for,
the Securities shall be made at the offices of Deutsche Bank Securities Inc., 60
Wall Street, 3rd Floor, New York, New York, at 10:00 a.m. New York time, on
April 29, 2005 or at such other time and date 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).
Payment for the Securities to be sold hereunder is to be made by
Federal Funds wire transfer to an account designated by the Company, against
delivery of the Securities to the Underwriters. The Securities will be evidenced
by a single definitive global certificate in book-entry form, fully registered
in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC"),
or registered in such other names and in such denominations as the
Representatives request in writing not later than the second full business day
prior to the Closing Date. The single global certificate will be made available
for inspection by the Representatives at least one business day prior to the
Closing Date at such place as the Representatives, DTC and the Company shall
agree.
3. OFFERING BY THE UNDERWRITERS. It is understood that the
several Underwriters are to make a public offering of the 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 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
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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, one signed copy 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 in
conformity with Rule 158 under the Securities Act for the purpose of,
and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the Securities Act.
(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
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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.
(viii) The Company will use the net proceeds from the sale of
the Securities pursuant to this Agreement in the manner specified under
the heading "Use of Proceeds" in the Prospectus.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses
and fees incident to the performance of its obligations under this Agreement and
the Indenture, including, without limiting the generality of the foregoing, the
following: the fees incident to the preparation, issuance, execution,
authentication and delivery of the 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 several Underwriters
will be paid by the Company. The Company shall not, however, be required to pay
for any of the Underwriters' expenses except that, if this Agreement shall not
be consummated because the conditions in Section 7 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
6 hereof, or this Agreement is terminated pursuant to Section 10(i)(a) or
Section 10(i)(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 or threatened 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 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:
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(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) As of December 31, 2004, the Company had
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, 2004 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 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.
10
(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 charter 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 prospectus supplement 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 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.
11
In addition, either such counsel or Arnold & Porter, special
tax counsel to the Company, 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, 1999 through December 31, 2004, 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, 2005. Furthermore, such
counsel shall opine that the statements contained under the headings
"Additional U.S. Federal Income Tax Considerations" and "U.S. Federal
Income Tax Considerations" in the Registration Statement or Prospectus
and under the heading "Taxation" in the Company's Annual Report on Form
10-K, and any amendments, for the fiscal year ended December 31, 2004
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, such counsel 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 such counsel
shall state that they believe that they and the Underwriters are
justified in relying on such other counsel and such other counsel shall
indicate that the Underwriters may rely on such opinion. As to matters
of fact, to the extent they deem proper, such counsel may rely on
certificates of officers of the Company and public officials so long as
such counsel states that they have no reason to believe that either the
Underwriters or they are not justified in relying on such certificates.
In addition to the matters set forth above, the opinion of Shumaker,
Loop & Kendrick, LLP shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads them to
believe that 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 of the Prospectus or such 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 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 information included therein). With respect to such
statement, Shumaker, Loop & Kendrick, LLP, may state that this
statement is based upon the procedures set forth or incorporated by
reference therein, but is without independent check and verification.
(iv) The Representatives shall have received from Calfee,
Halter & Griswold LLP, counsel for the Underwriters, an opinion dated
the Closing Date, with respect to the organization
12
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) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a signed
letter, in form and substance satisfactory to the Representatives,
dated the date hereof (a) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (b) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(vi) With respect to the letter of Ernst & Young LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter, in form and substance satisfactory to the Representatives (the
"bring-down letter"), of such accountants, dated the Closing Date, (a)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (b) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (c)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(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
13
not so disclosed therein or in a document incorporated by
reference therein; he does not know of any material contract
required to be filed as an exhibit to the Registration
Statement which is not so filed therein or in a document
incorporated by reference therein; 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 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 the case
of the Registration Statement or any amendment thereto, or in the case
of any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto 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
14
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 such 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 Sections 4(iii) or 4(iv). 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 case
of the Registration Statement or any amendment thereto, or in the case
of any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in the light of the circumstances under which they
were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made or incorporated by reference
in the Registration Statement, any Preliminary Prospectus, 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 materially 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
15
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 for all such indemnified parties and one local
counsel. 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
16
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 contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations under this Section 8(iv) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, 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 telecopied and
confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc.,
60 Wall Street, 3rd Floor, New York, New York 10005, or via fax at (212)
797-2202, Attention: Debt Capital Markets, with a copy to the General Counsel
via fax at (212) 797-4564; if to the Company, to Health Care REIT, Inc., One
SeaGate, Suite 1500, Toledo, Ohio 43603-1475, or via fax at (419) 247-2826,
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 hereof, 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 on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ, or in the Company's securities on the New
York Stock Exchange, shall have been suspended or materially limited
(other than limitations on hours
17
or numbers of days of trading) or minimum prices shall have been
established for securities on any such exchange, (d) the enactment,
publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in your reasonable opinion materially and adversely
affects or will materially or adversely affect the business or
operations of the Company, (e) declaration of a banking moratorium by
either federal or New York State authorities or material disruption in
securities settlement or clearance services in the United States, (f)
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 Sections 6 and 11 of this Agreement.
11. DEFAULT BY UNDERWRITERS. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Securities that it has
or they have agreed to purchase hereunder on such date (except in the event of a
default on the part of the Company), and the aggregate principal amount of
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 I 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, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default (except in the
event of a default on the part of the Company) occurs is more than ten percent
of the aggregate principal amount of 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/or 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. INFORMATION PROVIDED BY UNDERWRITERS. The Company and the
Underwriters acknowledge and agree that the only information furnished or to be
furnished by the Underwriters to the
18
Company for inclusion in any Prospectus or Registration Statement consists of
the information set forth in the third, fifth and ninth through fifteenth
paragraphs (provided that, with respect to such fifteenth paragraph, only the
Underwriter that maintains a website through which information relating to the
sale of the Securities is provided shall be deemed to have provided information
through such website for purposes of this Section 13 and the information so
provided shall include only the information contained in such website other than
the Prospectus) and the third sentence of the sixth paragraph under the caption
"Underwriting" in the Prospectus.
14. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Company or its directors or officers and (iii) delivery of and
payment for the 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 is intentionally left blank.]
19
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/ Raymond W. Braun
--------------------------------------
Name: Raymond W. Braun
------------------------------------
Title: President and Chief Financial Officer
------------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
UBS SECURITIES LLC
As Representatives of the Underwriters listed on Schedule I
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
-------------------------------------------------
Name: Lily Chang
-----------------------------------------------
Title: Principal
----------------------------------------------
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Erich Mauff
-------------------------------------------------
Name: Erich Mauff
-----------------------------------------------
Title: Managing Director
----------------------------------------------
By: /s/ Eric Dobi
-------------------------------------------------
Name: Eric Dobi
-----------------------------------------------
Title: Director
----------------------------------------------
By: UBS SECURITIES LLC
By: /s/ Christopher Forshner
-------------------------------------------------
Name: Christopher Forshner
-----------------------------------------------
Title: Managing Director
----------------------------------------------
By: /s/ Ryan Donovan
-------------------------------------------------
Name: Ryan Donovan
-----------------------------------------------
Title: Director
----------------------------------------------
SCHEDULE I
UNDERWRITERS
AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
- ----------- -----------------------
Deutsche Bank Securities Inc........................................................... $ 100,000,000
Banc of America Securities LLC......................................................... $ 62,500,000
UBS Securities LLC..................................................................... $ 62,500,000
ABN AMRO Incorporated.................................................................. $ 5,000,000
Comerica Securities, Inc............................................................... $ 5,000,000
Fifth Third Securities, Inc............................................................ $ 5,000,000
J.P. Morgan Securities Inc............................................................. $ 5,000,000
McDonald Investments Inc............................................................... $ 5,000,000
--------------
Total......................................................................... $ 250,000,000
==============
SCHEDULE II
TERMS OF SECURITIES
Underwriters: Banc of America Securities LLC
Deutsche Bank Securities Inc.
UBS Securities LLC
ABN AMRO Incorporated
Comerica Securities, Inc.
Fifth Third Securities, Inc.
J.P. Morgan Securities Inc.
McDonald Investments Inc.
Underwriting Agreement Date: April 26, 2005
Registration Statement No.: 333-107280
Title of Securities: 5.875% Notes due May 15, 2015 (the "Notes")
Aggregate Principal Amount: $250,000,000
Price to Public: 99.711% of the principal amount of the Notes (plus accrued
interest)
Underwriting Discount: 0.650%
Purchase Price to Underwriters: 99.061% of the principal amount of the Notes (plus accrued
interest)
Indenture: Indenture, dated as of September 6, 2002, between Health
Care REIT, Inc. and The Bank of New York Trust Company,
N.A. (as successor to The Fifth Third Bank), as amended
and/or supplemented by Supplemental Indenture No. 1, dated
as of September 6, 2002, Supplemental Indenture No. 2,
dated as of September 10, 2003, Supplemental Indenture No.
3, dated as of October 29, 2003, and Supplemental
Indenture No. 4, dated as of April 27, 2005, each as
amended from time to time
Trustee: The Bank of New York Trust Company, N.A.
Maturity: May 15, 2015
Interest Rate: 5.875%
Interest Payment Dates: November 15 and May 15
Optional Redemption Provisions: Make-Whole provision (T+25bps)
Sinking Fund Provisions: No
Closing Date and Time of Delivery: April 29, 2005
Closing Location: Deutsche Bank Securities Inc.
60 Wall Street, 3rd Floor
New York, New York 10005
SCHEDULE III
SUBSIDIARIES
STATE OF ORGANIZATION DATE OF
NAME OF SUBSIDIARY AND TYPE OF ENTITY ORGANIZATION
- ------------------------------------ ------------------------------------ ------------------
HCRI Pennsylvania Properties, Inc. Pennsylvania corporation November 1, 1993
HCRI Overlook Green, Inc. Pennsylvania corporation July 9, 1996
HCRI Texas Properties, Inc. Delaware corporation December 27, 1996
HCRI Texas Properties, Ltd. Texas limited partnership December 30, 1996
HCRI Friendship, LLC Virginia limited liability company February 21, 1997
HCRI St. Charles, LLC Virginia limited liability company February 21, 1997
HCRI Satyr Hill, LLC Virginia limited liability company November 24, 1997
Health Care REIT International, Inc. Delaware corporation February 11, 1998
HCN Atlantic GP, Inc. Delaware corporation February 20, 1998
HCN Atlantic LP, Inc. Delaware corporation February 20, 1998
HCRI Nevada Properties, Inc. Nevada corporation March 27, 1998
HCRI Southern Investments I, Inc. Delaware corporation June 11, 1998
HCRI Louisiana Properties, L.P. Delaware limited partnership June 11, 1998
HCN BCC Holdings, Inc. Delaware corporation September 25, 1998
HCRI Tennessee Properties, Inc. Delaware corporation September 25, 1998
HCRI Limited Holdings, Inc. Delaware corporation September 25, 1998
Pennsylvania BCC Properties, Inc. Pennsylvania corporation September 25, 1998
HCRI North Carolina Properties, LLC Delaware limited liability company December 10, 1999
HCRI Massachusetts Properties, Inc. Delaware corporation March 17, 2000
HCRI Massachusetts Properties Trust Massachusetts trust March 30, 2000
HCRI Indiana Properties, Inc. Delaware corporation June 15, 2000
HCRI Indiana Properties, LLC Indiana limited liability company June 16, 2000
HCRI Holdings Trust Massachusetts trust September 11, 2000
HCRI Maryland Properties, LLC Maryland limited liability company July 19, 2001
HCRI Massachusetts Properties Trust II Massachusetts trust September 26, 2001
HCRI Beachwood, Inc. Ohio corporation October 11, 2001
HCRI Broadview, Inc. Ohio corporation October 11, 2001
HCRI Westlake, Inc. Ohio corporation October 11, 2001
HCRI Westmoreland, Inc. Delaware corporation October 16, 2001
HCRI Wisconsin Properties, LLC Wisconsin limited liability company December 11, 2001
HCRI North Carolina Properties I, Inc. North Carolina corporation January 1, 2002
HCRI North Carolina Properties II, Inc. North Carolina corporation January 1, 2002
HCRI North Carolina Properties III, North Carolina limited partnership January 1, 2002
Limited Partnership
HCRI Kentucky Properties, LLC Kentucky limited liability company January 7, 2002
HCRI Laurel, LLC Maryland limited liability company January 17, 2002
HCRI Mississippi Properties, Inc. Mississippi corporation March 28, 2002
HCRI Illinois Properties, LLC Delaware limited liability company August 21, 2002
HCRI Missouri Properties, LLC Delaware limited liability company August 21, 2002
HCRI Surgical Properties, LLC Ohio limited liability company September 30, 2002
HCRI Tucson Properties, Inc. Delaware corporation November 14, 2002
HCRI Stonecreek Properties, LLC Delaware limited liability company June 25, 2003
HCRI Cold Spring Properties, LLC Delaware limited liability company June 25, 2003
HCRI Eddy Pond Properties Trust Massachusetts trust June 26, 2003
HCRI Investments, Inc. Delaware corporation July 30, 2003
STATE OF ORGANIZATION DATE OF
NAME OF SUBSIDIARY AND TYPE OF ENTITY ORGANIZATION
- ------------------------------------ ------------------------------------ ------------------
HCRI Forest City Holdings, Inc. North Carolina corporation August 19, 2003
HCRI Asheboro Holdings, Inc. North Carolina corporation August 19, 2003
HCRI Smithfield Holdings, Inc. North Carolina corporation August 19, 2003
HCRI Greenville Holdings, Inc. North Carolina corporation August 19, 2003
HCRI Forest City Properties, LP North Carolina limited partnership August 19, 2003
HCRI Asheboro Properties, LP North Carolina limited partnership August 19, 2003
HCRI Smithfield Properties, LP North Carolina limited partnership August 19, 2003
HCRI Greenville Properties, LP North Carolina limited partnership August 19, 2003
HCRI Kirkland Properties, LLC Delaware limited liability company August 22, 2003
HCRI Ridgeland Pointe Properties, LLC Delaware limited liability company August 22, 2003
HCRI Drum Hill Properties, LLC Delaware limited liability company August 22, 2003
HCRI Fairmont Properties, LLC Delaware limited liability company August 22, 2003
HCRI Abingdon Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Gaston Place Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Gaston Manor Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Eden Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Weddington Park Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Union Park Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Concord Place Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Salisbury Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Burlington Manor Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Skeet Club Manor Holdings, Inc. North Carolina corporation September 10, 2003
HCRI High Point Manor Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Hickory Manor Holdings, Inc. North Carolina corporation September 10, 2003
HCRI Statesville Place Holdings I, Inc. North Carolina corporation September 10, 2003
HCRI Statesville Place Holdings II, Inc. North Carolina corporation September 10, 2003
HCRI Abingdon Properties, LP North Carolina limited partnership September 10, 2003
HCRI Gaston Place Properties, LP North Carolina limited partnership September 10, 2003
HCRI Gaston Manor Properties, LP North Carolina limited partnership September 10, 2003
HCRI Eden Properties, LP North Carolina limited partnership September 10, 2003
HCRI Weddington Park Properties, LP North Carolina limited partnership September 10, 2003
HCRI Union Park Properties, LP North Carolina limited partnership September 10, 2003
HCRI Concord Place Properties, LP North Carolina limited partnership September 10, 2003
HCRI Salisbury Properties, LP North Carolina limited partnership September 10, 2003
HCRI Burlington Manor Properties, LP North Carolina limited partnership September 10, 2003
HCRI Skeet Club Manor Properties, LP North Carolina limited partnership September 10, 2003
HCRI High Point Manor Properties, LP North Carolina limited partnership September 10, 2003
HCRI Hickory Manor Properties, LP North Carolina limited partnership September 10, 2003
HCRI Statesville Place Properties I, LP North Carolina limited partnership September 10, 2003
HCRI Statesville Place Properties II, LP North Carolina limited partnership September 10, 2003
HCRI Chicago Properties, Inc. Delaware corporation November 18, 2003
HCRI General Properties, Inc. Delaware corporation August 5, 2004
HCRI Kansas Properties, LLC Delaware limited liability company September 3, 2004
HCRI Hunters Glen Properties, LLC Delaware limited liability company September 21, 2004
HCRI Wilburn Gardens Properties, LLC Delaware limited liability company September 21, 2004
HCRI Draper Place Properties Trust Massachusetts trust September 24, 2004
HCRI Marina Place Properties Trust Massachusetts trust September 24, 2004
HCRI Tennessee Properties, LLC Delaware limited liability company November 12, 2004
HH Florida, LLC Delaware limited liability company November 23, 2004