EXHIBIT 1.1
HEALTH CARE REIT, INC.
$100,000,000
8.0% Notes due 2012
UNDERWRITING AGREEMENT
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▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Bank Securities Inc.
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"), proposes to
sell to the underwriters (the "Underwriters") named in Schedule II hereto for
whom you are acting as representatives (the "Representatives"), the principal
amount of its debt securities identified in Schedule I hereto (the
"Securities"), to be issued under the Indenture specified in such schedule (the
"Indenture") between the Company and the trustee identified in such schedule
(the "Trustee").
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that the Underwriters are
willing to purchase the Securities set forth in Schedule I.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants as follows:
(i) A registration statement on Form S-3 (File No. 333-73936) with
respect to the Securities has been carefully prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission under the Securities Act.
The Company has complied with the conditions for the use of Form S-3.
Copies of such registration statement, including any amendments thereto,
the preliminary prospectuses (meeting the requirements of Rule 430A of the
Rules and Regulations) contained therein, the exhibits, financial
statements and schedules, as finally amended and revised, and all documents
incorporated by reference have heretofore been delivered by the Company to
you. Such registration statement, herein referred to as the "Registration
Statement," which shall be deemed to include all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below and all information incorporated by reference therein,
has been declared effective by the Commission under the Securities Act and
no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement; and the Registration Statement and
Prospectus as referred to below comply, or will comply, as the case may be,
in all material respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act"). The form of
prospectus first filed by the Company with the Commission pursuant to its
Rule 424(b) and Rule 430A, or if no such filing is required, the form of
final prospectus included in the Registration Statement at the time the
Registration Statement is declared effective, is herein referred to as the
"Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to as a
"Preliminary Prospectus." Any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein and any supplements or
amendments thereto filed with the Commission as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and in the case
of any reference herein to any Preliminary Prospectus or Prospectus, also
shall be deemed to include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of
such Preliminary Prospectus or Prospectus, and any supplements or
amendments thereto, filed with the Commission after the date of the filing
of the Prospectus under Rule 424(b) or 430A, and prior to the termination
of the offering of the Securities by the Underwriters. Any reference to any
amendment or supplement to any Preliminary Prospectus or Prospectus, as the
case may be, shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference into such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference into the Registration
Statement. Any reference to the Prospectus herein shall be deemed to refer
to and include the most recent prospectus supplement filed with respect to
the Securities.
(ii) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Registration Statement; the Company is duly
qualified to transact business in all jurisdictions in which the conduct of
its business requires such qualification, and in which the failure to
qualify would (a) have a materially adverse effect upon the business of the
Company and its Subsidiaries, taken as a whole, (b) adversely affect the
issuance, validity, or enforceability of the Securities or the
enforceability of the Indenture or (c) adversely affect the consummation of
the transactions contemplated by this Agreement (each of (a), (b) and (c)
above, a "Material Adverse Effect"); except for HCRI Pennsylvania
Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green, Inc.,
HCRI Nevada Properties, Inc., Health Care REIT International, Inc., HCRI
Southern Investments I, Inc., HCN BCC Holdings, Inc., HCRI Tennessee
Properties, Inc., HCRI Limited Holdings, Inc., HCRI Texas Properties, Ltd.,
Pennsylvania BCC Properties, Inc., HCN Atlantic GP, Inc., HCN Atlantic LP,
Inc., HCRI Louisiana Properties, L.P., HCRI North Carolina Properties, LLC,
HCRI Massachusetts Properties, Inc., HCRI Massachusetts Properties Trust,
HCRI Indiana Properties, Inc., HCRI Indiana Properties, LLC, HCRI Holdings
Trust, HCRI Maryland Properties LLC, HCRI Satyr Hill, LLC, HCRI Friendship,
LLC, HCRI St. ▇▇▇▇▇▇▇, LLC, HCRI Massachusetts Properties Trust II, HCRI
Beachwood, Inc., HCRI Broadview, Inc., HCRI Westlake, Inc., HCRI
▇▇▇▇▇▇▇▇▇▇▇▇, Inc., HCRI Wisconsin Properties, LLC, HCRI North Carolina
Properties I, Inc., HCRI North Carolina Properties II, Inc., HCRI North
Carolina Properties III, Limited Partnership, HCRI Kentucky Properties,
LLC, HCRI Laurel, LLC, HCRI Mississippi Properties, Inc., HCRI Illinois
Properties, LLC, HCRI Missouri Properties, LLC,
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HCRI Surgical Properties, LLC and HCRI Tucson Properties, 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 and enforceable against the Company
in accordance with their terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general principles
of equity, the limits of specific performance and injunctive relief, and
the exercise of judicial discretion (regardless of whether enforceability
is considered in a proceeding at law or in equity); the Indenture has been
duly authorized and qualified under the Trust Indenture Act and constitutes
a valid and binding instrument of the Company enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general principles
of equity, the limits of specific performance and injunctive relief, and
the exercise of judicial discretion (regardless of whether enforceability
is considered in a proceeding at law or in equity); and the Securities and
the Indenture will conform to the statements relating thereto contained in
the Prospectus, and any amendments and supplements thereto.
(iv) The Company's authorized, issued and outstanding capitalization
as of December 31, 2002 is set forth in the Prospectus; and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable.
(v) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus relating to the proposed offering of
the Securities nor instituted proceedings for that purpose. The
Registration Statement and the Prospectus, and any amendments or
supplements thereto, contain or will contain, all statements which are
required to be stated therein by, and in all material respects conform to
or will conform to, as the case may be, the requirements of the Securities
Act, the Rules and Regulations and the Trust Indenture Act. The documents
incorporated by reference in the Prospectus, at the time they were or will
be filed with the Commission, conformed or will conform at the time of
filing, in all material respects to the requirements of the Exchange Act or
the Securities Act, as applicable, and the Rules and Regulations of the
Commission thereunder. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto, including
any documents incorporated by reference therein, contains or will contain,
as the case may be, any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (a) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and
(b) information contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, or any documents
incorporated by reference therein, in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of the
Underwriters, specifically for use in the preparation thereof.
(vi) The financial statements of the Company, together with related
notes and schedules as set forth or incorporated by reference in the
Registration Statement, present fairly the financial position and the
results of operations of the Company at the indicated dates and for
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the indicated periods. Such financial statements and the related notes and
schedules have been prepared in accordance with generally accepted
accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results
for such periods have been made. The summary financial and statistical data
included or incorporated by reference in the Registration Statement present
fairly the information shown therein and, to the extent based upon or
derived from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein.
(vii) There is no action or proceeding pending or, to the knowledge of
the Company, threatened against the Company or involving any property of
the Company before any court or administrative agency which might
reasonably be expected to result in any Material Adverse Effect, except as
set forth in the Registration Statement.
(viii) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described (or as described in the Registration Statement as owned by it),
subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except those reflected in such financial statements (or as described in the
Registration Statement) or which are not material in amount or which do not
interfere with the use made or proposed to be made of the property. The
leases, agreements to purchase and mortgages to which the Company is a
party, and the guaranties of third parties (a) are the legal, valid and
binding obligations of the Company and, to the knowledge of the Company, of
all other parties thereto, and the Company knows of no default or defenses
currently existing with respect thereto which might reasonably be expected
to result in any Material Adverse Effect, and (b) conform to the
descriptions thereof set forth in the Registration Statement. Each mortgage
which the Company holds on the properties described in the Registration
Statement constitutes a valid mortgage lien for the benefit of the Company
on such property.
(ix) The Company has filed all Federal, state and foreign income tax
returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the extent
that such taxes have become due and are not being contested in good faith.
All tax liabilities have been adequately provided for in the financial
statements of the Company.
(x) Since the date as of which information is given in the
Registration Statement, as it may be amended or supplemented, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company or the earnings, business affairs, management, or
business prospects of the Company, whether or not occurring in the ordinary
course of business, and the Company has not incurred any material
liabilities or obligations and there has not been any material transaction
entered into by the Company, other than transactions in the ordinary course
of business and changes and transactions contemplated by the Registration
Statement, as it may be amended or supplemented. The Company has no
material contingent obligations which are not disclosed in the Registration
Statement, as it may be amended or supplemented.
(xi) The Company is not (a) in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a
party or by which it or any of its properties is bound or the Company's
certificate of incorporation or by-laws, (b) in violation of any statute,
or (c) in violation of any order, rule or regulation applicable to the
Company or its properties, of any court or of any regulatory body,
administrative agency or other governmental body, any of which defaults or
violations described in clauses (a) through (c) will have, or after any
required notice and passage of any applicable grace period would have, a
Material Adverse Effect. The issue and
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sale of the Securities and the performance by the Company of all of the
provisions of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated and the fulfillment of the terms hereof and thereof will not
conflict with or constitute a violation of any statute or conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which the Company or the
Company's properties may be bound, or of the certificate of incorporation
or by-laws of the Company or any order, rule or regulation applicable to
the Company or the Company's properties or of any court or of any
regulatory body, administrative agency or other governmental body.
(xii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
contemplated by this Agreement and the Indenture (except for the filing of
a prospectus supplement relating to the Securities or such additional steps
as may be required by the National Association of Securities Dealers, Inc.
(the "NASD") or may be necessary to qualify the Securities for public
offering by the Underwriters under state securities or Blue Sky laws) has
been obtained or made by the Company, and is in full force and effect.
(xiii) The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
its businesses and the Company has not received any notice of infringement
or of conflict with asserted rights of others with respect to any patents,
patent rights, trade names, trademarks or copyrights, which infringement is
material to the business of the Company.
(xiv) The Company qualifies as a real estate investment trust pursuant
to Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended, has so qualified for the taxable years ended December 31, 1984
through December 31, 2002 and no transaction or other event has occurred or
is contemplated which would prevent the Company from so qualifying for its
current taxable year.
(xv) To the best of the Company's knowledge, Ernst & Young LLP, who
have certified certain of the financial statements and related schedules
filed with the Commission as part of, or incorporated by reference in, the
Registration Statement, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(xvi) To the knowledge of the Company, after inquiry of its officers
and directors, there are no affiliations with the NASD among the Company's
officers, directors, or principal stockholders, except as set forth in the
Registration Statement or as otherwise disclosed in writing to the
Underwriters.
(xvii) This Agreement and the Indenture have been duly authorized,
executed and delivered by the Company.
(xviii) Neither the Company nor any of its officers or directors has
taken nor will any of them take, directly or indirectly, any action
resulting in a violation of Regulation M promulgated under the Exchange
Act, or designed to cause or result in, or which has constituted or which
reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Securities. The Company acknowledges that
the Underwriters may engage in transactions that
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stabilize, maintain or otherwise affect the price of the Securities,
including stabilizing bids, syndicate covering transactions and the
imposition of penalty bids.
(xix) The Company is not, and immediately after the sale of the
Securities pursuant to the terms and conditions of this Agreement will not
be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Company agrees to sell to the Underwriters and
the Underwriters agree to purchase severally and not jointly from the Company
the principal amount of Securities set forth in Schedule I hereto at the
purchase price set forth in Schedule I hereto plus accrued interest, if any,
from the date specified in Schedule I hereto to the date of payment and
delivery.
Payment for the Securities to be sold hereunder is to be made in New
York Clearing House funds by federal funds wire transfer or by certified or bank
cashier's checks drawn to the order of the Company for the Securities to be sold
by it against delivery of the Securities to the Representatives. Such payment
and delivery are to be made at the offices of Deutsche Bank Securities Inc., ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 a.m. New York time,
on the third business day after the date of this Agreement or at such other time
and date not later than three business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the "Closing
Date." (As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and not permitted by law or executive order to be closed). The
Securities will be registered in such names and in such denominations as the
Representatives request in writing not later than the second full business day
prior to the Closing Date, and will be delivered through book-entry facilities
of The Depository Trust Company ("DTC") and made available for inspection by the
Representatives at least one business day prior to the Closing Date at such
place as the Representatives, DTC and the Company shall agree.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Securities as soon as the
Representatives deem it advisable to do so. The Securities are to be initially
offered to the public at the price and upon the terms set forth in the
Prospectus. The Representatives may from time to time thereafter change the
public offering price and other selling terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations, if the final form of the
prospectus is not included in the Registration Statement at the time the
Registration Statement is declared effective, a Prospectus containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A, if applicable, of the
Rules and Regulations, (b) use its best efforts to cause the Registration
Statement to remain in effect as to the Securities for so long as the
Representatives may deem necessary in order to complete the distribution of
the Securities, (c) not file any amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference
therein, of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance with the
Rules and Regulations for so long as the Representatives may deem necessary
in order to complete the distribution of the
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Securities and (d) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Securities by the Underwriters;
provided, however, that for each such report or definitive proxy or
information statement, the Company will not file any such report or
definitive proxy or information statement, or amendment thereto, of which
the Representatives shall not previously have been advised and furnished
with a copy or to which the Representatives shall have reasonably objected
in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose for so long as the
Representatives may deem necessary in order to complete the distribution of
the Securities, or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, and the Company will use its best
efforts to prevent (a) the issuance of any such stop order preventing or
suspending the use of the Prospectus, or (b) any such suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
and to obtain as soon as possible the lifting of any such stop order, if
issued, or such suspension of qualification.
(iii) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company will
deliver to, or upon the order of, the Representatives during the period
when delivery of a Prospectus is required under the Securities Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request. The Company
will deliver to the Representatives at or before the Closing Date, six
signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration Statement,
including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Representatives may
reasonably request.
(iv) Subject to the provisions of Section 4(i) above, if during the
period in which a prospectus is required by law to be delivered by an
Underwriter or a dealer any event shall occur as a result of which, in the
judgment of the Company or in the opinion of counsel for the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading, or, if it
is necessary at any time to amend or supplement the Prospectus to comply
with any law, the Company promptly will either (a) prepare and file with
the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by
reference in the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law.
(v) The Company will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to security
holders as soon as practicable an earnings statement for the purpose of,
and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the Securities Act.
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(vi) The Company will, for a period of five years from the Closing
Date, deliver to the Representatives copies of annual reports and copies of
all other documents, reports and information furnished by the Company to
its stockholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the
Securities Act or the Exchange Act. The Company will deliver to the
Representatives similar reports with respect to significant subsidiaries,
as that term is defined in the Rules and Regulations, which are not
consolidated in the Company's financial statements.
(vii) The Company will not, during the period beginning on the date
hereof and continuing to and including the business day following the
Closing Date, offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities without the Representatives' prior written
consent.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees
incident to the performance of its obligations under this Agreement and the
Indenture, including, without limiting the generality of the foregoing, the
following: the fees incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of the
Trustee; the fees payable to rating agencies in connection with the rating of
the Securities; accounting fees of the Company; the fees and disbursements of
counsel for the Company; the cost of printing and delivering to, or as requested
by, the Underwriters, copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Indenture and any supplements
or amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Securities; and the
fees incident to the listing of the Securities on any stock exchange. Any
transfer taxes imposed on the sale of the Securities to the Underwriters will be
paid by the Company. The Company shall not, however, be required to pay for any
of the Underwriters' expenses except that, if this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
6 hereof, or this Agreement is terminated pursuant to Section 10(i)(a) or
Section 10(i)(h) hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with said
terms be due to the default or omission of any Underwriter, then the Company
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Securities or in
contemplation of performing its obligations hereunder, but the Company shall not
in any event be liable to any of the several Underwriters for damages on account
of loss of anticipated profits from the sale by any of them of the Securities.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations
of the Underwriters to purchase the Securities on the Closing Date are subject
to the accuracy, as of the Closing Date, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of
the Company, shall be contemplated by the Commission.
(ii) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (a) any intended or potential
downgrading or (b) any review or possible change that does not indicate an
improvement in the rating, if any, accorded any securities of or guaranteed
by the
8
Company by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
(iii) The Representatives shall have received on the Closing Date, the
opinion of ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, dated
the Closing Date and addressed to the Representatives, as representatives
of the several Underwriters, to the effect that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus.
(b) The Company is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification, and in which the failure to qualify would have a
Material Adverse Effect.
(c) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus or a
referenced amendment or supplement thereto; the authorized shares of
its Common Stock have been duly authorized; the outstanding shares of
its Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable.
(d) The Registration Statement has become effective under the
Securities Act and, to such counsel's knowledge no stop order
proceedings with respect thereto have been instituted or are pending
or threatened under the Securities Act.
(e) The Registration Statement, the Prospectus and each amendment
or supplement thereto and documents incorporated by reference therein
comply as to form in all material respects with the requirements of
the Securities Act, the Exchange Act or the Trust Indenture Act, as
applicable, and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial
statements, schedules and other financial or statistical information
included or incorporated by reference therein).
(f) The statements contained in the Prospectus under the captions
"Description of Notes" and "Description of Debt Securities," insofar
as such statements constitute a summary of documents referred to
therein or matters of law, are accurate summaries and fairly and
correctly present in all material respects the information called for
with respect to such documents and matters.
(g) The statements under the caption "Certain Government
Regulations" in the Company's Annual Report on Form 10-K, and any
amendments thereto, for the fiscal year ended December 31, 2002 as to
matters of law stated therein, have been reviewed by such counsel and
constitute fair summaries of the matters described therein which are
material to the business or condition (financial or otherwise) of the
Company.
(h) Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement
or the Prospectus or any amendment or supplement thereto which are not
so filed, incorporated by reference or described as required, and such
contracts and documents as are summarized in the Registration
9
Statement or the Prospectus or any amendment or supplement thereto are
fairly summarized in all material respects.
(i) Such counsel knows of no material legal proceedings pending
or threatened against the Company, except as set forth in the
Prospectus or any amendment or supplement thereto.
(j) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions herein
contemplated, including the issuance and sale of the Securities and
the performance by the Company of its obligations under the
Securities, the Indenture and this Agreement, do not and will not
conflict with or constitute a violation of any statute or conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or
by-laws of the Company, any material agreement or instrument known to
such counsel to which the Company is a party or by which the Company
or the Company's properties may be bound or any order known to such
counsel or rule or regulation applicable to the Company or the
Company's properties of any court or governmental agency or body.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity, the limits of specific performance and
injunctive relief, and the exercise of judicial discretion (regardless
of whether enforceability is considered in a proceeding at law or in
equity); and the Indenture has been duly qualified under the Trust
Indenture Act.
(m) The Securities have been duly authorized and executed by the
Company and when authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Agreement, will constitute a valid
and binding obligation of the Company entitled to the benefits
provided by the Indenture, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity, the limits of specific performance and
injunctive relief, and the exercise of judicial discretion (regardless
of whether enforceability is considered in a proceeding at law or in
equity).
(n) The Indenture and the Securities conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(o) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement or the Indenture and the consummation
of the transactions contemplated this Agreement or the Indenture
(other than (i) the filing of a supplement to the Prospectus with the
Commission, and (ii) as may be required by the NASD or as required by
state securities and Blue Sky laws as to which
10
such counsel need express no opinion) except such as have been
obtained or made by the Company, specifying the same.
(p) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
In addition, either such counsel or ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special tax
counsel to the Company, will provide an opinion, based on such counsel's
own review of the Company's certificate of incorporation, stating that the
Company was organized and continues to be organized in conformity with the
requirements for qualification as a real estate investment trust under
subchapter M of the Internal Revenue Code of 1986, as amended (the "Code")
and, based on such counsel's review of the Company's federal income tax
returns and discussions with management and independent public accountants
for the Company, that the Company, taking into account operations for its
taxable and fiscal years ended December 31, 1999 through December 31, 2002,
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, 2003. Furthermore, such counsel shall
opine that the statements contained under the heading "Taxation" in the
Registration Statement or Prospectus and in the Company's Annual Report on
Form 10-K, and any amendments, for the fiscal year ended December 31, 2002
are correct and accurate in all material respects and present fairly and
accurately the material aspects of the federal income tax treatment of the
Company and of its stockholders.
In rendering such opinion, such counsel may rely as to matters
governed by the laws of states other than the laws of State of Ohio, the
corporate laws of the State of Delaware or Federal laws on local counsel in
such jurisdictions, provided that in such case such counsel shall state
that they believe that they and the Underwriters are justified in relying
on such other counsel and such other counsel shall indicate that the
Underwriters may rely on such opinion. As to matters of fact, to the extent
they deem proper, such counsel may rely on certificates of officers of the
Company and public officials so long as such counsel states that they have
no reason to believe that either the Representatives or they are not
justified in relying on such certificates. In addition to the matters set
forth above, the opinion of ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP shall also
include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration Statement,
as of the time it became effective under the Securities Act, the Prospectus
or any amendment or supplement thereto, on the date it was filed pursuant
to Rule 424(b), or any of the documents incorporated by reference therein,
as of the date of effectiveness of the Registration Statement or, in the
case of documents incorporated by reference into the Prospectus after the
date of effectiveness of the Registration Statement, as of the date when
such document was filed with the Commission, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and the Registration Statement and the Prospectus, or any amendment or
supplement thereto, or any of the documents incorporated by reference
therein, as of the date of effectiveness of the Registration Statement or,
in the case of documents incorporated by reference into the Prospectus
after the date of effectiveness of the Registration Statement, as of the
respective date when such documents were filed with the Commission, or as
of the Closing Date, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading (except that such counsel need
express no view as to financial statements, schedules and other financial
or statistical information included therein). With respect to such
statement, ▇▇▇▇▇▇▇▇, Loop &
11
▇▇▇▇▇▇▇▇, LLP, may state that this statement is based upon the procedures
set forth or incorporated by reference therein, but is without independent
check and verification.
(iv) The Representatives shall have received from ▇▇▇▇▇▇, Halter &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion dated the Closing
Date, with respect to the organization of the Company, the validity of the
Indenture and the Securities, the Registration Statement, the Prospectus
and other related matters as the Representatives reasonably may request and
such counsel shall have received such papers and information as they
reasonably request to enable them to pass upon such matters.
(v) The Representatives shall have received on the Closing Date, a
signed letter from Ernst & Young LLP, dated the Closing Date, which shall
confirm, on the basis of a review in accordance with the procedures set
forth in the letter, dated March 12, 2003, signed by such firm and
delivered to the Representatives by Ernst & Young LLP, that nothing has
come to their attention during the period from the date five days prior to
the date hereof, to a date not more than five days prior to the Closing
Date, which would require any change in its letter dated March 12, 2003 if
it were required to be dated and delivered on the Closing Date. All such
letters shall be in form and substance satisfactory to the Representatives.
(vii) The Representatives shall have received on the Closing Date, a
certificate or certificates of the Chairman of the Board and Chief
Executive Officer and the President and Chief Financial Officer of the
Company to the effect that as of the Closing Date, each of them severally
represents as follows:
(a) The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, contemplated by the
Commission.
(b) Subsequent to the delivery of this Agreement and prior to the
Closing date, there shall not have occurred any downgrading, nor shall
any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not
indicate an improvement in the rating, if any, accorded any securities
of or guaranteed by the Company by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) of the Securities Act.
(c) He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed in the
Registration Statement which is not so disclosed; he does not know of
any material contract required to be filed as an exhibit to the
Registration Statement which is not so filed; and the representations
and warranties of the Company contained in Section 1 hereof are true
and correct as of the Closing Date.
(d) He has carefully examined the Registration Statement and the
Prospectus and in his opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration
Statement, including any document incorporated by reference therein,
were true and correct, and such Registration Statement and Prospectus,
or any document incorporated by reference therein, did not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in his
opinion, since the effective date of the Registration Statement, no
12
event has occurred which should have been set forth in a supplement to
or an amendment of the Prospectus which has not been so set forth in
such supplement or amendment.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Representatives and to ▇▇▇▇▇▇, Halter &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Representatives by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell and deliver the portion of the Securities required to be
delivered as and when specified in this Agreement are subject to the conditions
that at the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(i) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and directors, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act against
any losses, claims, damages or liabilities to which such Underwriter or
such controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon
(a) any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, (b) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made, or (c) any act or failure to act, or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to,
the Securities or the offering contemplated hereby, and will reimburse each
such Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person
in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
or through the Representatives specifically for use in the preparation
thereof; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any Underwriter, its
officers and directors, or any person controlling the Underwriter on
account of any loss, claim, damage, liability or action arising from the
sale of any Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by
the Securities Act, and the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact in
such Preliminary Prospectus was corrected in the Prospectus, unless such
failure resulted from non-compliance by the Company with Section 4(iv) or
Section
13
4(v). This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(ii) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
or through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability
which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Sections 8(i) or (ii) shall be available to
any party who shall fail to give notice as provided in this Section 8(iii)
if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have
to the indemnified party for contribution or otherwise than on account of
the provisions of Sections 8(i) or (ii). In case any such proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party and shall pay as incurred the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred
the fees and expenses of the counsel retained by the indemnified party in
the event (a) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (b) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, in which case the indemnifying
party shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such
counsel. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm
14
for all such indemnified parties. Such firm shall be designated in writing
by you in the case of parties indemnified pursuant to Section 8(i) and by
the Company in the case of parties indemnified pursuant to Section 8(ii).
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the fifth sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent to which
the indemnification obligations of the Company hereunder are applicable if
(a) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (b) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(iv) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless to the extent required
therein an indemnified party under Sections 8(i) or (ii) above in respect
of any losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Underwriters
from the offering of the Securities. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section
8(iii) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Underwriters bear to the total
proceeds of the offering (the proceeds received by the Underwriters being
equal to the total underwriting discounts and commissions received by the
Underwriters), in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(iv) were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 8(iv). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(iv)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(iv),
(a) no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Securities
purchased by such Underwriter and (b) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to
15
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(iv) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction over any other contributing
party, agrees that process issuing from such court may be served upon him
or it by any other contributing party and consents to the service of such
process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other
contributing party is a party.
9. NOTICES. All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc.,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇; if to the Company, to Health Care REIT, Inc., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the
Board and Chief Executive Officer.
10. TERMINATION. This Agreement may be terminated by you by notice to the
Company as follows:
(i) at any time prior to the Closing Date if any of the following has
occurred: (a) since the date as of which information is given in the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, business affairs,
management or business prospects of the Company, whether or not arising in
the ordinary course of business, (b) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date
hereof or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your judgment, make the
offering or delivery of the Securities impracticable or inadvisable, (c)
trading in securities generally or in the Company's securities on the New
York Stock Exchange or the American Stock Exchange shall have been
suspended or materially limited (other than limitations on hours or numbers
of days of trading) or minimum prices shall have been established for
securities on either such Exchange, (d) the enactment, publication, decree
or other promulgation of any federal or state statute, regulation, rule or
order of any court or other governmental authority which in your reasonable
opinion materially and adversely affects or will materially or adversely
affect the business or operations of the Company, (e) declaration of a
banking moratorium by either federal or New York State authorities or
material disruption in securities settlement or clearance services in the
United States, (f) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in
your reasonable opinion has a material adverse effect on the securities
markets in the United States, (g) any litigation or proceeding is pending
or threatened against any Underwriter which seeks to enjoin or otherwise
restrain, or seeks damages in connection with, or questions the legality or
validity of this Agreement or the transactions contemplated hereby, or (h)
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Exchange Act); or
(ii) as provided in Section 6 of this Agreement.
16
11. DEFAULT OF UNDERWRITERS. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than ten per cent of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Representatives or the Company shall have the right to
postpone the Closing, but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 11. Any action taken under this Section 11 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the benefit
of the Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any purchaser of
the Securities merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (iii) delivery of and payment for
the Securities under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
[The remainder of this page intentionally left blank.]
17
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriters in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
AS REPRESENTATIVES OF THE UNDERWRITERS LISTED ON SCHEDULE II
BY: DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate
BY: UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director Associate Director
18
SCHEDULE I
----------
Underwriters: Deutsche Bank Securities Inc.
UBS Warburg LLC
Banc of America Securities LLC
▇▇▇▇▇▇▇▇ Investments Inc.
Underwriting Agreement Date: March 12, 2003
Registration Statement No.: 333-73936
Title of Securities: 8.0% Senior Notes due September 12, 2012 (the "Notes")
Aggregate Principle Amount: $100,000,000
Price to Public: 104.036% of the principal amount of the Notes (plus
accrued interest)
Underwriting Discount: 0.750%
Purchase Price to Underwriter: 103.286% of the principal amount of the Notes (plus
accrued interest)
Indenture: Indenture, dated as of September 6, 2002, as amended by
the Supplemental Indenture No. 1, between Health Care
REIT, Inc. and The Fifth Third Bank, as amended
Trustee: The Fifth Third Bank
Maturity: September 12, 2012
Interest Rate: 8.0%
Interest Payment Dates: March 12 and September 12
Optional Redemption Provisions: Make-Whole provision (T+25bps)
Sinking Fund Provisions: No
Closing Date and Time of Delivery: March 17, 2003
Closing Location: ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP
1400 ▇▇▇▇▇▇▇▇ Investment Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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SCHEDULE II
SCHEDULE OF UNDERWRITERS
AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
----------- ------------
Deutsche Bank Securities Inc................................. $37,500,000
UBS Warburg LLC.............................................. $37,500,000
Banc of America Securities LLC............................... $20,000,000
▇▇▇▇▇▇▇▇ Investments Inc..................................... $5,000,000
----------
Total............................................... $100,000,000
============
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