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Exhibit 1.1
HEALTH CARE REIT, INC.
$80,000,000
7.57% Notes due 2000
7.89% Notes due 2002
8.09% Notes due 2004
UNDERWRITING AGREEMENT
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April 17, 1997
Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to Alex. Brown & Sons Incorporated (the "Underwriter"), the
principal amount of its debt securities identified in Schedules I hereto (the
"Securities"), to be issued under the Indenture specified in Schedule I hereto
(the "Indenture") between the Company and the trustee identified in such
Schedule (the "Trustee").
As the Underwriter, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that you are willing to purchase
the Securities set forth opposite your name 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. 333-19801)
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 "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 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
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"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 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 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 Underwriter. 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 (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.
(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, (a) adversely affect the issuance, validity, or enforceability
of the Securities or the enforceability of the Indenture or (b)
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. and HCRI Overlook Green, Inc., 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 enforceable
against the Company in accordance with their terms; 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; and the Securities
and the Indenture will
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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 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 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 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 Underwriter,
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 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
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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 change in the
business or condition (financial or otherwise) of the Company, 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 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 (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)
constitutes, or after any required notice and passage of any applicable
grace period would constitute, 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 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
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with the execution and delivery by the Company of this Agreement and
the consummation of the transactions contemplated by this Agreement and
the Indenture (except such additional steps as may be required by the
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 856-860 of the Internal Revenue Code of 1986, as
amended, has so qualified for the taxable years ended December 31, 1984
through December 31, 1996 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 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 Underwriter.
(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 Rule 10b-6 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 Company's Common Stock. The Company
acknowledges that the Underwriters may engage in passive market making
transactions in the Company's Common Stock.
(xix) Except as disclosed in the Registration Statement, the
Company is not a party to any written contract or agreement relating to
any purchase of real property or the lending of funds secured by real
property which is probable of being consummated.
(xx) 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
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agrees to sell to the Underwriter and the Underwriter agrees to purchase 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 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 Underwriter. Such payment and delivery are to be made at
the offices of Alex. Brown & Sons Incorporated, 135 East Baltimore Street,
Baltimore, Maryland, at 10:00 A.M. Baltimore 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 Underwriter requests 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 Underwriter at least one business day
prior to the Closing Date at such place as the Underwriter, DTC and the Company
shall agree.
3. OFFERING BY THE UNDERWRITERS. It is understood that the Underwriter
is to make a public offering of the Securities as soon as the Underwriter deems
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 Underwriter 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
several 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 Underwriter 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 Underwriter shall not
previously have been advised and furnished with a copy or to which the
Underwriter shall have reasonably objected in writing or which is not
in compliance with the Rules and Regulations 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 Underwriter shall not
previously have been advised and furnished with a copy or to which the
Underwriter shall have reasonably objected in writing or which is not
in compliance with the Rules and Regulations.
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(ii) The Company will advise the Underwriter 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,
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 cooperate with the Underwriter in
endeavoring to qualify the Securities for sale under the securities
laws of such jurisdictions as the Underwriter may reasonably have
designated and will make such applications, file such documents, and
furnish such information as may be reasonably required for that
purpose, provided the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction or to subject itself to taxation as doing business
in any jurisdiction where it is not now so qualified or required to
file such a consent or so subject to taxation. The Company will, from
time to time, prepare and file such statements, reports, and other
documents, as are or may be required to continue such qualifications in
effect for so long a period as the Underwriter may reasonably request
for distribution of the Securities.
(iv) The Company will deliver to, or upon the order of, the
Underwriter, from time to time, as many copies of any Preliminary
Prospectus as the Underwriter may reasonably request. The Company will
deliver to, or upon the order of, the Underwriter during the period
when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or
supplemented, as the Underwriter may reasonably request. The Company
will deliver to the Underwriter 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
Underwriter such number of copies of the Registration Statement,
including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Underwriter may
reasonably request.
(v) 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 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.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earnings statement (which need not be audited) in
reasonable detail,
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covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158
of the Rules and Regulations and will advise you in writing when such
statement has been so made available.
(vii) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriter 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 Act or the Exchange Act. The Company will deliver to
the Underwriter 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.
(viii) 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 Underwriter's 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 Underwriter, copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Indenture, the Underwriters'
Questionnaire, the Invitation Letter, the Blue Sky Survey 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; the fees
incident to the listing of the Securities on any stock exchange; and the
expenses, including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Securities under state
securities or Blue Sky laws. 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
(other than those related to qualification under state securities or Blue Sky
laws) 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 Underwriter pursuant to Section 6 hereof (other than a
termination as a result of a failure to satisfy the condition set forth in
subparagraph (d) of Section 6 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 their obligations hereunder, but the Company
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by 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
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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 and 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 Act.
(iii) The Underwriter 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 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 constitute a Material Adverse Effect.
(c) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus; 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 Act and, to such counsel's knowledge no stop order
proceedings with respect thereto have been instituted or are
pending or threatened under the 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 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 caption "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.
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(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, 1996 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 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 are fairly summarized
in all material respects.
(i) Such counsel knows of no legal proceedings
pending or threatened against the Company that could,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, except as set forth in the
Prospectus.
(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, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally
and (B) general principles of equity (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 Underwriter 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,
moratorium or similar laws now or hereafter in effect
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relating to creditors' rights generally and (B) general
principles of equity (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 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.
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, 1993 through December 31, 1996, 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, 1997. Furthermore, such
counsel shall opine that the statements contained under the heading
"Taxation" in the Registration Statement and in the Company's Annual
Report on Form 10-K, and any amendments, for the fiscal year ended
December 31, 1996 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 Underwriter 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 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
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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, 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, as of the
Closing Date or the Option Closing Date, as the case may be, 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, Shumaker, Loop & Kendrick, LLP, may state that their belief
is based upon the procedures set forth or incorporated by reference
therein, but is without independent check and verification.
(iv) The Underwriter 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 Underwriter
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 Underwriter shall have received at or prior to the
Closing Date from Calfee, Halter & Griswold LLP, a memorandum or
summary, in form and substance satisfactory to the Underwriter, with
respect to the qualification for offering and sale by the Underwriter
of the Securities under the state securities or Blue Sky laws of such
jurisdictions as the Underwriter may reasonably have designated to the
Company.
(vi) The Underwriter 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 April 17, 1997, signed by
such firm and delivered to the Underwriter by Ernst & Young LLP, that
nothing has come to their respective 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 April 17, 1997 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 Underwriter.
(vii) The Underwriter shall have received on the Closing Date,
a certificate or certificates of the Chairman of the Board, Chief
Executive Officer, and President and the 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 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.
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(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 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 or she 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 or the Option Closing
Date, as the case may be.
(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.
(vii) The Underwriter shall have received at or prior to the
Closing Date, an agreement, in form and substance satisfactory to the
Underwriter, signed by the Company and the directors and officers of
the Company to the effect that they will not, prior to the expiration
of 90 days from the date of this Agreement, sell or otherwise dispose
of any shares of Common Stock of the Company without the prior written
consent of the Underwriter, except
pursuant to bona fide gifts to transferees who agree in writing to be
bound by the restrictions on transfer set forth in this paragraph (g).
(vi) The Securities to be sold by the Company as of the
Closing Date or the Option Closing Date, as the case may be, shall have
been duly listed, subject to notice of issuance, on the New York Stock
Exchange.
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 Underwriter 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 Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the case
may be.
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).
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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 or the Option Closing Date, as the case may be, 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 and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities to which such Underwriter or such controlling person may
become subject under the 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, or (b) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each 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 Underwriter 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 or any person controlling that 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 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 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 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 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
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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 Underwriter 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(a) or (b) shall be available
to any party who shall fail to give notice as provided in this Section
8(c) 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(a) or (b). 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 for all
such indemnified parties. Such firm shall be designated in writing by
you in the case of parties indemnified pursuant to Section 8(a) and by
the Company in the case of parties indemnified pursuant to Section
8(b). 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 30 days after receipt by such indemnifying party of the
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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(a) or (b) 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(c)
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(d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 8(d). 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(d) 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(d), (i) 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 (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The underwriters' obligations in
this Section 8(d) 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
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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. DEFAULT BY THE UNDERWRITERS. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase and pay
for the portion of the Securities which such Underwriter has agreed to purchase
and pay for on such date (otherwise than by reason of any default on the part of
the Company), you, as Underwriter , shall use your best efforts to procure
within 24 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company such amounts as may be agreed upon and upon the
terms set forth herein, the Securities or Option Securities, as the case may be,
which the defaulting Underwriter failed to purchase. If during such 24 hours
you, as such Underwriter, shall not have procured such other Underwriters, or
any others, to purchase the Securities or Option Securities, as the case may be,
agreed to be purchased by the defaulting Underwriter or Underwriters, then (a)
if the aggregate number of shares with respect to which such default shall occur
does not exceed 10% of the Securities or Option Securities, as the case may be,
covered hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Securities or Option Securities, as the
case may be, which they are obligated to purchase hereunder, to purchase the
Securities or Option Securities, as the case may be, which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of shares of Securities or Option Securities, as the case may be, with respect
to which such default shall occur exceeds 10% of the Securities or Option
Securities, as the case may be, covered hereby, the Company or you as the
Underwriter will have the right, by written notice given within the next 24-hour
period to the parties to this Agreement, to terminate this Agreement without
liability on the part of the non-defaulting Underwriters or of the Company
except to the extent provided in Section 8 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing Date, as the case may be, may be postponed for such
period, not exceeding seven days, as you, as Underwriter, may determine in order
that the required changes in the Registration Statement or in the Prospectus or
in any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
10. 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 Alex. Brown & Sons
Incorporated, 135 East Baltimore Street, Baltimore, Maryland 21202, Attention:
Thomas J. DeRosa, with a copy to Daniel E. McIntyre; 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, Chief Executive Officer and
President.
11. TERMINATION. This Agreement may be terminated by you by notice to
the Company as follows:
(i) at any time prior to the earlier of (i) the time the
Securities are released by you for sale by notice to the Underwriters,
or (ii) 11:30 A.M. on the first business day following the date of this
Agreement;
(ii) at any time prior to the Closing Date if any of the
following has occurred: (a) since the respective dates as of which
information is given in the Registration Statement and 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
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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
reasonable judgment, make the offering or delivery of the Securities
impracticable or inadvisable, (c) trading in 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, (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, or (g)
any litigation or proceeding is pending or threatened against the
Underwriters 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
(iii) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company,
as to any obligation of the Underwriters to purchase the Option Securities, upon
the occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Sections 6 and 9 of 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 Maryland.
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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 several
Underwriter in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ George L. Chapman
----------------------------------------
George L. Chapman, Chairman of the Board,
Chief Executive Officer and President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
By: /s/ Thomas J. DeRosa
-------------------------------------
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Schedule I
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Underwriter: Alex. Brown & Sons Incorporated
Underwriting Agreement Date: April 17, 1997
Registration Statement No.: 333-19801
Title of Securities: A) 7.57% Notes due 2000 (the
"Notes due 2000")
B) 7.89% Notes due 2002 (the
"Notes due 2002")
C) 8.09% Notes due 2004 (the
"Notes due 2004")
Aggregate Principle Amount: A) $20,000,000 of Notes due 2000
B) $20,000,000 of Notes due 2002
C) $40,000,000 of Notes due 2004
Price to Public: 100% of the principal amount of
each of the Notes, plus accrued
interest, if any, from the
Closing Date
Underwriting Discount: A) 0.400% for the Notes due 2000
B) 0.500% for the Notes due 2002
C) 0.625% for the Notes due 2004
Purchase Price to Underwriter: A) 99.60% of the principal
amount of the Notes due 2000
B) 99.50% of the principal
amount of the Notes due 2002
C) 99.375% of the principal
amount of the Notes due 2004
Indenture: Indenture dated as of April
17, 1997 as amended by the
Supplemental Indenture No. 1
dated as of April 17, 1997
between Health Care REIT, Inc.
and Fifth Third Bank
Trustee: Fifth Third Bank
Maturity: A) April 15, 2000 for the Notes
due 2000
B) April 15, 2002 for the Notes
due 2002
C) April 15, 2004 for the Notes
due 2004
Interest Rate: A) 7.57% for the Notes due 2000
B) 7.89% for the Notes due 2002
C) 8.09% for the Notes due 2004
Interest Payment Dates: April 15 and October 15,
commencing October 15, 1997 for
each of the Notes
Optional Redemption Provisions: Yes
Sinking Fund Provisions: None
Closing Date and Time of Delivery: April 22, 1997, 10:00 a.m.
Closing Location: Alex. Brown & Sons Incorporated
135 East Baltimore
Baltimore, Maryland
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