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Exhibit 1.1
HEALTH CARE REIT, INC.
$50,000,000
8.17% Notes due 2006
UNDERWRITING AGREEMENT
March 15, 1999
Legg Mason Wood Walker, Incorporated
100 Light Street
Baltimore, Maryland 21202
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to Legg Mason Wood Walker, Incorporated (the "Underwriter"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), to be issued under the Indenture specified in such schedule (the
"Indenture") between the Company and the trustee identified in such schedule
(the "Trustee").
As the 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 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. 333-43177)
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 have 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 prospectus (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 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
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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, 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.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Registration Statement;
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification, and
in which the failure to qualify would (a) have a materially adverse
effect upon the business of the Company and its subsidiaries, taken as
a whole, (b) adversely affect the issuance, validity, or enforceability
of the Securities or the enforceability of the Indenture or (c)
adversely affect the consummation of the transactions contemplated by
this Agreement (each of (a), (b) and (c) above, a "Material Adverse
Effect"); except for HCRI Pennsylvania Properties, Inc., HCRI Texas
Properties, Inc., HCRI Overlook Green, Inc., HCRI Texas Properties,
Ltd., HCRI Nevada Properties, Inc., Health Care REIT International,
Inc., HCRI Southern Properties I, Inc., HCN BCC Holdings, Inc., HCR
Tennessee Properties, Ltd., HCRI Limited Holdings, Inc., HCRI Texas
Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP,
Inc., HCN Atlantic L.P., Inc., HCRI Louisiana Properties, L.P. and HCRI
Tennessee Properties, L.P., the Company has no subsidiaries.
(iii) The Securities have been duly authorized and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture, will be duly and validly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their terms; 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 conform to the statements
relating thereto contained in the Prospectus, and any amendments and
supplements thereto.
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(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 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
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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 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
Underwriter under state securities or Blue Sky laws) has been obtained
or made by the Company, and is in full force and effect.
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(xiii) The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of its businesses and the Company has not received any notice
of infringement or of conflict with asserted rights of others with
respect to any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company.
(xiv) The Company qualifies as a real estate investment trust
pursuant to Sections 856 through 860 of the Internal Revenue Code of
1986, as amended, has so qualified for the taxable years ended December
31, 1984 through December 31, 1997 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 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.
(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 and which, if not
consummated, might reasonably be expected to result in any Material
Adverse Effect.
(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 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 Legg Mason Wood Walker, Incorporated, 100 Light Street,
Baltimore, Maryland
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21202, at 9:00 A.M. local 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 request in writing not later than the second
full business day prior to the Closing Date, and will be delivered through
book-entry facilities of The Depository Trust Company ("DTC") and made available
for inspection by the 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 UNDERWRITER. 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
Underwriter 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 Underwriter; 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.
(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.
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(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 the 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 Underwriter, 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, 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 the
Underwriter 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.
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(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' 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 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 Underwriter, 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 Underwriter will be paid by the Company. The Company
shall not, however, be required to pay for any of the Underwriter's 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 (iv) 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 Underwriter 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 the Underwriter for damages on account of loss of
anticipated profits from the sale by them of the Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER. The obligation of the
Underwriter to purchase the Securities on the Closing Date are subject to the
accuracy, as of the Closing Date, of the representations and warranties of the
Company contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated by the Commission.
(ii) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (a) any
intended or potential downgrading or (b) any review or possible change
that does not indicate an improvement in the rating, if any, accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act.
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(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 Underwriter 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.
(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, 1998 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.
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(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 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.
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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, 1997, 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, 1998. 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, 1998 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 Underwriter are justified in relying on such other
counsel and such other counsel shall indicate that the Underwriter 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 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, 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 Underwriter, 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.
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(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 March __, 1999, signed by
such firm and delivered to the Underwriter by Ernst & Young LLP, that
nothing has come to their attention during the period from the date
five days prior to the date hereof, to a date not more than five days
prior to the Closing Date, which would require any change in its letter
dated March __, 1999 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.
(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 does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date.
(d) He has carefully examined the Registration
Statement and the Prospectus and in his opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement, including any
document incorporated by reference therein, were true and
correct, and such Registration Statement and Prospectus, or
any document incorporated by reference therein, did not omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading and, in his opinion, since the effective date of
the Registration Statement, no 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.
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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 Underwriter.
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 Underwriter 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.
In such event, the Company and the Underwriter 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 the
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 the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by the 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 any Underwriter on
account of any loss, claim, damage, liability or action arising from
the sale of any Securities to any person by such Underwriter if such
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) The Underwriter 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
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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 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 the 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(i) or (ii) shall be
available to any party who shall fail to give notice as provided in
this Section 8(iii) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties
from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of the provisions of
Sections 8(i) or (ii). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its
own expense. Notwithstanding the foregoing, the indemnifying party
shall pay as incurred the fees and expenses of the counsel retained by
the indemnified party in the event (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (b) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them, in which case the indemnifying party shall not
be entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one separate
firm for all such indemnified parties. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to Section
8(i) and by the Company in the case of parties indemnified pursuant to
Section 8(ii). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as
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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 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 on the one hand and the Underwriter on the other 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 on the one hand and the
Underwriter on the other 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 on the one hand and the Underwriter on the other 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
Underwriter bear to the total proceeds of the offering (the proceeds
received by the Underwriter being equal to the total underwriting
discounts and commissions received by the Underwriter), 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 on the one hand or the Underwriter
on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter 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 Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(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 of any our
having jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon him or it by any
other contributing party and consents to the service of such process
and agrees that any other contributing party may join him or it as an
additional defendant in any such proceeding in which such other
contributing party is a party.
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9. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriter, to Legg Mason Wood Walker,
Incorporated, 100 Light Street, Baltimore, Maryland 21202, Attention: David
O'Malley; 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.
10. 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, 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 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, (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
(iii) as provided in Section 6 of this Agreement.
11. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriter 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.
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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 the Underwriter any or controlling person thereof, or by or on behalf
of the Company or its directors or officers and (iii) delivery of and payment
for the Securities under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
[The remainder of this page intentionally left blank.]
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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
Underwriter in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By:
-----------------------------------------
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.
LEGG MASON WOOD WALKER, INCORPORATED
By:
-----------------------------
Its:
-----------------------------
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SCHEDULE I
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Underwriter: Legg Mason Wood Walker, Incorporated
Underwriting Agreement Date: March __, 1999
Registration Statement No.: 333-43177
Title of Securities: 8.17% Notes due 2006 (the "Notes")
Aggregate Principle Amount: $50,000,000
Price to Public: 100% of the principal amount of the Notes, plus accrued
interest, if any, from the Closing Date
Underwriting Discount: 0.50%
Purchase Price to Underwriter: 99.5% of the principal amount of the Notes
Indenture: Indenture, dated as of April 17, 1997, as amended by
the Supplemental Indenture No. 3, between Health Care
REIT, Inc. and The Fifth Third Bank
Trustee: The Fifth Third Bank
Maturity: March 15, 2006
Interest Rate: 8.17%
Interest Payment Dates: March 15
September 15
Optional Redemption Provisions: Yes
Sinking Fund Provisions: No
Closing Date and Time of Delivery: March __, 1999
Closing Location: Legg Mason Wood Walker, Incorporated
100 Light Street
Baltimore, Maryland 21202
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