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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
March 15, 1999
HEALTH CARE REIT, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-8923 34-1096634
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603-1475
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): 419-247-2800
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ITEM 5. OTHER EVENTS.
In connection with the Company's Registration Statement on Form S-3 (File
333-43177), declared effective January 7, 1998, the Company has entered
into an Underwriting Agreement with Legg Mason Wood Walker, Incorporated for an
offering of $50,000,000 of Debt Securities of the Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.1 Form of Underwriting Agreement
4.1 Indenture
4.2 Form of Second Supplemental Indenture
12.1 Statement Regarding Computation of Earnings to Fixed
Charges
25.1 Statement of Eligibility of Trustee
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned thereunto duly authorized.
HEALTH CARE REIT, INC.
By: /s/ GEORGE L. CHAPMAN
---------------------------
George L. Chapman
Its: Chairman of the Board, Chief
Executive Officer and President
Dated: March 17, 1999
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EXHIBIT INDEX
Designation
Number Under
Item 601 of
Exhibit No. Regulation S-K Description
- ----------- -------------- -----------
1.1 1 Form of Underwriting
Agreement
4.1(1) 4 Indenture
4.2 4 Form of Third Supplemental
Indenture
12.1 12 Statement Regarding
Computation of Earnings
to Fixed Charges
23.1 23 Consent of Independent Auditors
25.1 25 Statement of Eligibility
of Trustee
- -----------------
(1) Previously filed as Exhibit 4.1 to the Company's Form 8-K
dated April 17, 1997 and incorporated herein by reference.
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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.
9
<PAGE> 10
(j) The execution and delivery of this Agreement and
the Indenture and the consummation of the transactions herein
contemplated, including the issuance and sale of the
Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this
Agreement, do not and will not conflict with or constitute a
violation of any statute or conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, the 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.
10
<PAGE> 11
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.
11
<PAGE> 12
(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.
12
<PAGE> 13
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
13
<PAGE> 14
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
14
<PAGE> 15
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.
15
<PAGE> 16
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.
16
<PAGE> 17
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.]
17
<PAGE> 18
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:
-----------------------------
18
<PAGE> 19
<TABLE>
<CAPTION>
SCHEDULE I
----------
<S> <C>
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
</TABLE>
19
<PAGE> 1
Exhibit 4.2
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 18, 1999
BETWEEN
HEALTH CARE REIT, INC.
AND
FIFTH THIRD BANK
-------------------------------------------
HEALTH CARE REIT, INC.
Issuer
to
FIFTH THIRD BANK
Trustee
---------------------------------------------
Supplemental Indenture No. 3
Dated as of March 18, 1999
---------------------------------------------
$50,000,000
8.17% Notes due 2006
-----------------------------------------------
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 3, dated as of March 18, 1999 (the
"Supplemental Indenture"), between HEALTH CARE REIT, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), and THE FIFTH THIRD BANK, an Ohio banking corporation, duly
organized and existing under the laws of the State of Ohio, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture, dated
as of April 17, 1997 (the "Senior Indenture"), a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 33-64877) and incorporated by reference as an exhibit to the
Company's Registration Statement on Form S-3 (Registration No. 333-43177)
providing for the issuance from time to time of Debt Securities of the Company
(the "Securities").
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series
of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of any series thereof, as follows:
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<PAGE> 3
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the State of
Ohio are authorized or required by law, regulation or executive order to close.
"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt.
"Capital Lease" means at any time any lease of property, real or
personal, which, in accordance with GAAP, would at such time be required to be
capitalized on a balance sheet of the lessee.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a Capital Lease
on a balance sheet of such Person under GAAP.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) less (i) all
current liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like tangibles of the Company
and its consolidated subsidiaries, all as set forth on the most recent balance
sheet of the Company and its consolidated subsidiaries prepared in accordance
with GAAP.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 38 Fountain Square
Plaza, Cincinnati, Ohio 45263 and, for purposes of the Place of Payment
provisions of Sections 305 and 1002 of the Senior Indenture, is located at Chase
Bank, Four New York Plaza, Ground Floor/Receiving Window, New York, New York
10004.
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<PAGE> 4
"DTC" means The Depository Trust Company located at 55 Water Street,
49th Floor, New York, New York, 10041-0099.
"EBITDA" means for any period, with respect to the Company on a
consolidated basis, determined in accordance with GAAP, the sum of net income
(or net loss) for such period plus, the sum of all amounts treated as expenses
for: (a) interest, (b) depreciation, (c) amortization and (d) all accrued taxes
on or measured by income to the extent included in the determination of such net
income (or net loss); provided, however, that net income (or net loss) shall be
computed without giving effect to extraordinary losses or gains.
"GAAP" means generally accepted accounting principles.
"Indebtedness" means with respect to any Person, all: (a) liabilities
or obligations, direct and contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities that in
accordance with such principles, would be set forth in a specific Dollar amount
on the liability side of such balance sheet, and Capitalized Lease Obligations
of such Person; (b) liabilities or obligations of others for which such Person
is directly or indirectly liable, by way of guaranty (whether by direct
guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to
purchase or advance or keep in funds or other agreement having the effect of a
guaranty) or otherwise; (c) liabilities or obligations secured by Liens on any
assets of such Person, whether or not such liabilities or obligations shall have
been assumed by it; and (d) liabilities or obligations of such Person, direct or
contingent, with respect to letters of credit issued for the account of such
Person and bankers acceptances created for such Person.
"Interest Coverage" means as of the last day of any fiscal quarter, the
quotient, expressed as a percentage (which may be in excess of 100%), determined
by dividing EBITDA by Interest Expense; all of the foregoing calculated by
reference to the immediately preceding four fiscal quarters of the Company
ending on such date of determination.
"Interest Expense" means for any period, on a combined basis, the sum
of all interest paid or payable (excluding unamortized debt issuance costs) on
all items of Indebtedness of the Company outstanding at any time during such
period.
"Liabilities" means, at any date, the items shown as liabilities on the
balance sheet of the Company except any item of deferred income, including
capital gains;
"Lien" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, claim or charge of any kind (including any agreement to give
any of the foregoing), any conditional sale or other title retention agreement,
any lease in the nature of any of the foregoing, and the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction.
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<PAGE> 5
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Notes" has the meaning specified in Section 2.1 hereof.
"Person" means an individual, partnership, corporation, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purpose
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Senior Debt" means all Indebtedness other than Subordinated Debt.
"Statistical Release" means that statistical release designated
"H.15(519)" or any successor publication that is published weekly by the Federal
Reserve System and that establishes yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Senior
Indenture, then such other reasonably comparable index that shall be designated
by the Company.
"Subordinated Debt" means any unsecured Indebtedness of the Company
which is issued or assumed pursuant to, or evidenced by, an indenture or other
instrument which contains provisions for the subordination of such other
Indebtedness (to which appropriate reference shall be made in the instruments
evidencing such other Indebtedness if not contained therein) to the Notes (and,
at the option of the Company, if so provided, to other Indebtedness of the
Company, either generally or as specifically designated).
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<PAGE> 6
"Tangible Net Worth" means the sum of capital surplus, earned surplus
and capital stock, minus deferred charges with GAAP consistently applied.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be one series of Securities designated the "8.17% Notes due
2006" (the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$50,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 306, 906 and 1304 of the Senior
Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.
The Notes will bear interest at a rate of 8.17% per annum. Interest
will accrue from March 18, 1999 or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semi-annually in arrears on March 15 and September 15 of each year, commencing
September 15, 1999 (each, an "Interest Payment Date"), to the Person in whose
name such Note is registered at the close of business on March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest will be computed
on the basis of a 360-day year comprised of twelve 30-day months. The interest
so payable on any Note which is not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the Person in whose
name such Note is registered on the relevant Regular Record Date, and such
defaulted interest shall instead be payable to the Person in whose name such
Note is registered on the Special Record Date or other specified date determined
in accordance with the Senior Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be.
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<PAGE> 7
The Notes will mature on March 15, 2006.
SECTION 2.4. Covenants of the Company.
(a) The Company will not pledge or otherwise subject to any Lien, any
property or assets of the Company or its subsidiaries unless the Notes are
secured by such pledge or Lien equally and ratably with all other obligations
secured thereby so long as such obligations shall be so secured; provided,
however that such restriction shall not apply to the following:
(i) Liens securing obligations which do not in the aggregate
at any one time outstanding exceed 10% of Consolidated Net Tangible Assets of
the Company and its consolidated subsidiaries;
(ii) Pledges or deposits by the Company or its subsidiaries
under workers' compensation laws, unemployment insurance laws, social security
laws, or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness of the Company or
its subsidiaries), or leases to which the Company or any of its subsidiaries is
a party, or deposits to secure public or statutory obligations of the Company or
its subsidiaries or deposits of cash or United States Government Bonds to secure
surety, appeal, performance or other similar bonds to which the Company or any
of its subsidiaries is a party, or deposits as security for contested taxes or
import duties or for the payment of rent;
(iii) Liens imposed by law, such as carriers', warehousemen's,
materialmen's and mechanics' liens, or Liens arising out of judgments or awards
against the Company or any of its subsidiaries which the Company or such
subsidiary at the time shall be currently prosecuting an appeal or proceeding
for review;
(iv) Liens for taxes not yet subject to penalties for
non-payment and Liens for taxes the payment of which is being contested in good
faith and by appropriate proceedings;
(v) Minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of, others for rights of way, highways and railroad
crossings, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
properties;
(vi) Liens incidental to the conduct of the business of the
Company or any subsidiary or to the ownership of their respective properties
that were not incurred in connection with Indebtedness of the Company or such
subsidiary, all of which Liens referred to in this clause (vi) do not in the
aggregate materially impair the value of the properties to which they relate or
materially impair their use in the operation of the business taken as a whole of
the Company and its subsidiaries, and as to all of the foregoing referenced in
clauses (ii) through (vi), only to the extent arising and continuing in the
ordinary course of business;
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<PAGE> 8
(vii) Purchase money Liens on property acquired or held by the
Company or its subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of such property; provided, however, that (A) any such Lien attaches
concurrently with or within 20 days after the acquisition thereof, (B) such Lien
attaches solely to the property so acquired in such transaction, (C) the
principal amount of the Indebtedness secured thereby does not exceed 100% of the
cost of such property and (D) the aggregate amount of all such Indebtedness on a
consolidated basis for the Company and its subsidiaries shall not at any time
exceed $1,000,000;
(viii) Liens existing on the Company's balance sheet as of
December 31, 1996; and
(ix) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Lien
referred to in the foregoing clauses (ii) through (viii) inclusive; provided,
however, that the amount of any and all obligations and Indebtedness secured
thereby shall not exceed the amount thereof so secured immediately prior to the
time of such extension, renewal or replacement and that such extension, renewal
or replacement shall be limited to all or a part of the property which secured
the Lien so extended, renewed or replaced (plus improvements on such property).
(b) The Company will not create, assume, incur, or otherwise become
liable in respect of, any Senior Debt unless the aggregate outstanding principal
amount of Senior Debt of the Company will not, at the time of such creation,
assumption or incurrance and after giving effect thereto and to any concurrent
transactions, exceed the greater of (i) 150% of Capital Base or (ii) 225% of
Tangible New Worth.
(c) The Company will have or maintain, on a consolidated basis, as of
the last day of each of the Company's fiscal quarter, Interest Coverage of not
less than 150%.
(d) For purposes of this Section 2.4, Debt shall be deemed to be
"incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 2.5. Optional Redemption.
(a) The Notes may be redeemed at any time at the option of the Company,
in whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount, if any, with respect to the Notes (or portion
thereof).
(b) If notice has been given pursuant to Section 1104 of the Senior
Indenture and funds for the redemption of any Notes (or any portion thereof)
called for redemption shall have been made available on the Redemption Date,
such Notes (or any portion thereof) will cease to bear interest on the
Redemption Date specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price.
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<PAGE> 9
(c) The Company will notify the Trustee at least 30 days prior to
giving notice of redemption (or such shorter period as is satisfactory to the
Trustee) of the aggregate principal amount of such Notes to be redeemed and the
Redemption Date. If less than all of the Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem fair and appropriate, the Notes to
be redeemed in whole or in part.
SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Senior Indenture may be served shall be in (i) the Borough of
Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be Chase Bank, Four New York Plaza, Ground
Floor/Receiving Window, New York, New York 10004 and (ii) the City of
Cincinnati, Ohio, and the office or agency for such purpose shall initially be
located at c/o Fifth Third Bank, 38 Fountain Square Plaza, Cincinnati, Ohio
45263.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the Notes will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, the City of New York (which shall initially be an office or agency
of the Trustee), in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payments of principal and
interest on the Notes (other than payments of principal and interest due at
Maturity) may be made (a) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (b) by wire
transfer to an account maintained by the Person entitled thereto located inside
the United States.
SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in Dollars.
SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered form
as Registered Securities, without coupons. The Notes shall be issued in the form
of one or more permanent Global Securities. The depositary for the Notes shall
be DTC. The Notes shall not be issuable in definitive form except as provided in
Section 305 of the Senior Indenture.
SECTION 2.10. Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
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<PAGE> 10
SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the
Notes.
SECTION 2.12. Defeasance.
(a) The provisions of Sections 1402 and 1403 of the Senior Indenture,
together with the other provisions of Article XIV of the Senior Indenture, shall
be applicable to the Notes. The provisions of Section 1403 of the Senior
Indenture shall apply to the covenants set forth in Section 2.4 of this
Supplemental Indenture and to those covenants specified in Section 1403 of the
Senior Indenture.
(b) The Company, at its option (i) will be discharged from any and all
obligations in respect to the Notes (except for certain obligations to register
the transfer or exchange of the Notes, to replace destroyed, stolen, lost or
mutilated Notes, and to maintain an office or agency in respect of the Notes and
hold moneys for payment in trust) or (ii) will be released from its obligations
to comply with the provisions of Section 2.4 hereof, and the occurrence of an
Event of Default pursuant to Section 501 of the Senior Indenture shall no longer
be an Event of Default if, in either case, the Company irrevocably deposits with
the Trustee, in trust, money or United States Government Obligations that
through payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all of the
principal of (and premium, if any) and any interest on the Notes on the dates
such payments are due (which may include one or more Redemption Dates designated
by the Company) in accordance with the terms of such Notes.
(c) Such a trust may only be established if, among other things, (i) no
Event of Default or event which with the giving of notice or lapse of time, or
both, would become an Event of Default under the Indenture shall have occurred
and be continuing on the date of such deposit, (ii) the Company shall have
delivered an Opinion of Counsel to the effect that the holders of the Notes of
such series will not recognize gain or loss for United States Federal income tax
purposes as a result of such deposit or defeasance and will be subject to United
Stated Federal income tax in the same manner as if such defeasance had not
occurred. In the event the Company omits to comply with its remaining
obligations under the Indenture after a defeasance of the Indenture with respect
to the Notes and the Notes are declared due and payable because of the
occurrence of any undefeased Event of Default, the amount of money and United
States Government Obligations on deposit with the Trustee may be insufficient to
pay amounts due on the Notes at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect to such
payments.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and the Note shall be governed by and
construed in accordance with the laws of the State of Delaware. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
10
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
HEALTH CARE REIT, INC.
By:
----------------------------
EDWARD F. LANGE, JR.
Vice President, Chief
Financial Officer and
Treasurer
FIFTH THIRD BANK
By:
----------------------------
CHRISTINE M. SCHAUB
Vice President
11
<PAGE> 13
EXHIBIT A TO SUPPLEMENTAL INDENTURE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Registered No. PRINCIPAL AMOUNT
CUSIP No. 42217K AG 1 $50,000,000
HEALTH CARE REIT, INC.
8.17% NOTE DUE 2006
HEALTH CARE REIT, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company," which
term shall include any successor corporation under the Senior Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of FIFTY
MILLION DOLLARS on March 15, 2006 and to pay interest on the outstanding
principal amount thereon from March 18, 1999, or from the immediately preceding
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on March 15 and September 15 in each year, commencing
September 15, 1999, at the rate of 8.17% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Senior Indenture, be paid to the Person in whose name this
Security is registered at the close of business on the Regular Record Date for
such interest which shall be the March 1 or September 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may either be
paid to the Person in whose name this Security is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of the
Securities not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal
of and interest on this Security will be made at the office or agency maintained
for that purpose in the City of New York, New York, or elsewhere as provided in
the Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at
<PAGE> 14
the option of the Company payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located inside the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of April 17, 1997, as
supplemented by Supplemental Indenture No. 3, dated as of March 18, 1999 (as so
supplemented, herein called the "Senior Indenture"), between the Company and
Fifth Third Bank (herein called the "Trustee," which term includes any successor
trustee under the Senior Indenture), to which Senior Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are authenticated and delivered. This Security is one of
the series designated in the first page thereof, limited in aggregate principal
amount to $50,000,000.
The Senior Indenture and the Supplemental Indenture contain provisions
for optional defeasance at any time of the payment and discharge of the entire
indebtedness of the Company on this Security and upon compliance by the Company
with certain conditions set forth in the Senior Indenture, which provisions
apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Senior Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Senior Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
interest on or after the respective due dates expressed herein.
The Senior Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series of Securities then
Outstanding affected thereby. The Senior Indenture also contains provisions
permitting the Holders of
<PAGE> 15
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Senior
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Senior Indenture and no provision of this
Security or of the Senior Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Senior Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
and interest on this Security are payable duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Senior Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Senior Indenture or in this Security, or because of any
indebtedness evidenced hereby or thereby, shall be had against any promoter, as
such, or against any past, present or future shareholder, officer or director,
as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
<PAGE> 16
All capitalized terms used in this Security which are defined in the
Senior Indenture shall have the meanings assigned to them in the Senior
Indenture.
THE SENIOR INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Senior Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, HEALTH CARE REIT, INC. has caused this instrument
to be duly executed under its corporate seal.
Dated: March 18, 1999
HEALTH CARE REIT, INC.
By:
--------------------------
EDWARD F. LANGE, JR.
Vice President, Chief
Financial Officer and
Treasurer
Corporate Seal
Attest:
- --------------------------
Secretary
<PAGE> 17
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIFTH THIRD BANK,
as Trustee
-------------------------------
CHRISTINE M. SCHAUB,
Vice President
<PAGE> 18
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -----------------------------------------------------
- -----------------------------------------------------
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
the within Security of Health Care REIT, Inc. and hereby does irrevocably
constitute and appoint _________________________________________ Attorney to
transfer said Security on the books of the within-named Company with full power
of substitution in the premises.
Dated: _________________
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
<PAGE> 1
Exhibit 12.1
HEALTH CARE REIT, INC.
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year Ended December 31
----------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(In thousands)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED EARNINGS:
Net Income 62,309 46,477 30,676 13,635 24,953
Add:
Interest Expense 18,030 15,366 14,635 12,752 9,684
Amortization of
Loan Expenses 685 720 808 752 638
Equity earnings in less
than 50% subsidiary (375)
------ ------ ------ ------ ------
Consolidated Earnings 80,649 62,563 46,119 27,139 35,275
CONSOLIDATED FIXED CHARGES:
Interest Expense 18,030 15,366 14,635 12,752 9,684
Capitalized Interest 7,740 2,305 287
Amortization of
Loan Expenses 685 720 808 752 638
------ ------ ------ ------ ------
Consolidated Fixed Charges 26,455 18,391 15,730 13,504 10,322
====== ====== ====== ====== ======
Ratio 3.05 3.40 2.93 2.01 3.42
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Prospectus Supplement dated March 15, 1999 to the Registration Statement (Form
S-3 No. 333-43177) and related Prospectus of Health Care REIT, Inc. for the
registration of $50,000,000 of 8.17% Notes due 2006 and to the incorporation by
reference therein of our report dated January 20, 1999, with respect to the
consolidated financial statements and schedules of Health Care REIT, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
March 15, 1999
<PAGE> 1
Exhibit 25.1
FORM T-1 File No. ____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(B)(2)
FIFTH THIRD BANK
- --------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
Ohio
- --------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a national bank)
31-0854433
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
38 Fountain Square Plaza, Cincinnati, Ohio
- --------------------------------------------------------------------------------
(Address of principal executive offices)
45263
- --------------------------------------------------------------------------------
(Zip Code)
Paul L. Reynolds, 5th and Walnut Streets
Cincinnati, Ohio, 45263 (513) 579-5300
- --------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
HEALTH CARE REIT, INC.
- --------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
34-1096634
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
One SeaGate, Suite 1950, Toledo, Ohio
- --------------------------------------------------------------------------------
(Address of principal executive offices)
43604
- --------------------------------------------------------------------------------
(Zip Code)
8.17% Note Due 2006
- --------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee -
(a) Name and address of each examining or supervising authority
to which it is subject.
Ohio Superintendent of Banks
State Office Tower
30 E. Broad Street
Columbus, Ohio 43215
Federal Reserve Bank of Cleveland
East Sixth Street and Superior Avenue
Cleveland, Ohio 44101
Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
ITEMS 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 AND 15 ARE NOT APPLICABLE BY VIRTUE OF
THE ANSWER TO ITEM 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None.
(b) If the Trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None.
2
<PAGE> 3
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility. (Exhibits identified in parentheses, on file with the
Commission, are incorporated herein by reference as exhibits hereto.)
(1) A copy of the Certificate of Incorporation of the trustee as
now in effect.
(2) A copy of the certificate of authority of the trustee to
commence business. (Included in Exhibit 1)
(3) A copy of the authorization of the trustee to exercise
corporate trust powers.
(4) A copy of the existing code of regulations of the trustee
incorporating amendments to date.
(5) A copy of each indenture referred to in Item 4.
(6) The consent of the trustee required by Section 321 (b) of the
Trust Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
(8) A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
(9) Foreign trustees are required to file a consent to service of
process of Form F-X
3
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the trustee, Fifth Third Bank, a corporation organized and existing under
the laws of the State of Ohio, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Cincinnati and the State of Ohio, on the _____
day of March, 1999.
FIFTH THIRD BANK
By: /s/ CHRISTINE M. SCHAUB
--------------------------------
Christine M. Schaub,
Vice President and Trust Officer
4
<PAGE> 5
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION
OF
FIFTH THIRD BANK
F.K.A. The Fifth Third Bank
George A. Schaefer, Jr., President and Paul L. Reynolds, Assistant
Secretary, of the above named Ohio banking corporation do hereby certify that in
a writing signed by all the shareholders who would be entitled to notice of a
meeting held for that purpose, the following resolution to amend the Articles
was adopted:
RESOLVED, that the Articles of Incorporation, as amended, of The Fifth Third
Bank, (the "Company"), be and the same hereby are amended so that Article First
thereof shall henceforth be and read as follows:
FIRST: The name of said Corporation shall be "Fifth Third Bank'.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf
of the corporation, have hereto subscribed their names this 4th day of October
1998.
By: /s/ GEORGE A. SCHAEFER, JR.
-------------------------------------
George A. Schaefer, Jr., President
By: /s/ PAUL L. REYNOLDS
-------------------------------------
Paul L. Reynolds, Assistant Secretary
Approved this 2nd day of November, 1999.
/s/ W. CURTIS STITT
- ----------------------------------
W. Curtis Stitt, Superintendent
Division of Financial Institutions
5
<PAGE> 6
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
George A. Schaefer, Jr., President and Phillip C. Long, Secretary to
The Fifth Third Bank, an Ohio banking corporation, with its principal office
located at Cincinnati, Hamilton County, Ohio, do hereby certify that a duly
called meeting of the Board of Directors held on May 18, 1993, at which a quorum
was present and at a special meeting of the shareholder on May 18, 1993, the
following resolution to amend the Third Amended Articles of Incorporation which
adopted by affirmative vote of all the Directors in attendance and by an
unanimous vote of the sole shareholder.
RESOLVED, that Article FOURTH of the Third Amendment Articles of
Incorporation be and is hereby amended in its entirety to read as
follows:
FOURTH: The maximum number of shares with the corporation is authorized
to have outstanding shall be Thirty-Two Thousand (32,000) shares with a
par value of Two Thousand Two Hundred Dollars ($2,200.00) per share.
IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and Phillip
C. Long, Secretary of The Fifth Third Bank, acting for and on behalf of said
corporation have hereunto subscribed their names this 18th day of May, 1993.
/s/ GEORGE A. SCHAEFER, JR.
--------------------------------------
George A. Schaefer, Jr., President
Approved this 16th day of June, 1993
/s/ ALLISON M. MEEKS
- --------------------------------
Allison M. Meeks, Superintendent
/s/ PHILLIP C. LONG
--------------------------------------
Phillip C. Long, Secretary
6
<PAGE> 7
THIRD AMENDED ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
FIRST: The name of said Corporation shall be "The Fifth Third Bank".
SECOND: The place in Ohio where its principal office is to be located
is Cincinnati, Hamilton County, and its principal business there transacted.
THIRD: Said Corporation is formed for the purposes of (a) receiving on
deposit or in trust, moneys, securities and other valuable property, on such
terms as may be agreed, and of doing the business of a savings bank and of a
trust company; (b) of disposing of box vaults for safekeeping of valuables by
lease or otherwise; (c) of investing and loaning the funds of the company and
those received by it on deposit or in trust; (d) of doing a commercial banking
business; and, (e) of doing the business of a special plan bank, and in
furtherance of said purposes, to exercise all the powers of which may be
lawfully exercised by a corporation formed therefore, and to do all things
necessary to incident thereto.
FOURTH: The maximum number of shares which the corporation is
authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares with
a par value of One Thousand Nine Hundred Dollars ($1,900.00) per share.
FIFTH: These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation.
7
<PAGE> 8
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
8
<PAGE> 9
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
[See Attached]
9
<PAGE> 10
STATE OF OHIO
DIVISION OF FINANCIAL INSTITUTIONS
This is to certify that Fifth Third Bank, Cincinnati, Ohio, organized under the
laws of the State of Ohio has complied with the laws relating to trust companies
under Section 1111.04 of the Ohio Revised Code and is qualified to exercise
trust powers in Ohio.
Witness my hand at Columbus, Ohio, this 1st day of March, 1999.
/s/ W. CURTIS STITT
-------------------------
W. Curtis Stitt
Superintendent
Division of Financial
Institutions
10
<PAGE> 11
EXHIBIT 4
A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO DATE
[See Attached]
11
<PAGE> 12
CODE OF REGULATIONS OF FIFTH THIRD BANK
ARTICLE I
STOCKHOLDERS
SECTION 1. MEETINGS. The annual meeting of the Stockholders shall be
held at the principal office of the Company at such hour, as may be fixed in the
notice of such meeting, and on such date, not earlier than the second Tuesday of
January or later than the third Tuesday of April of each year, as shall be fixed
by the Board of Directors and communicated in writing to the Shareholders not
later than twenty (20) days prior to such meeting.
SECTION 2. QUORUM. Stockholders, whether in person or by lawful
proxies, representing a majority in amount of the outstanding stock of the
Company, shall constitute a quorum at any stockholders' meeting. If there be
less than a majority in amount of such stock at any meeting, the meeting may be
adjourned from time to time.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER. The Board of Directors shall be composed of eighteen
(18) persons unless this number is changed by: (1) the Shareholders in
accordance with the laws of Ohio or (2) the vote of a majority of the Directors
in office. The Directors may increase the number to not more than twenty-four
(24) persons and may decrease the number to not less than fifteen (15) persons.
Any Director's office created by the Directors by reason of an increase in their
number may be filled by action of a majority of the Directors in office.
SECTION 2. TERM. Directors shall hold office until the expiration of
the term for which they were erected, and shall continue in office until their
respective successors shall have been duly elected and qualified.
SECTION 3. QUALIFICATIONS AND COMPENSATION. No person shall serve as a
Director who is not the owner of record of at least Five Hundred ($500.00)
Dollars par value of stock of the Company. Each Director shall be entitled to
receive such compensation for attendance at meetings of the Board of Directors
of Committees thereof as the Board of Directors may, from time to time, fix.
SECTION 4. REPLACEMENT OR REMOVAL. Directors may be replaced or removed
as provided by Ohio Law, provided that Directors may be removed without cause
only by an affirmative vote of not less than two-thirds (2/3) of the outstanding
shares of the Company.
SECTION 5. VACANCIES. Any vacancy occurring in the Board of Directors
may be filled by the Board of Directors until an election to fill such vacancy
is had.
SECTION 6. QUORUM. A majority of the whole authorized number of
Directors, as the same shall be established from time to time in accordance with
Section 1 of this Code of Regulations, shall constitute a quorum for a meeting
of the Directors, except that a majority of the Directors in office constitute a
quorum for the filling of a vacancy or vacancies of the Board.
12
<PAGE> 13
SECTION 7. ELECTION OF OFFICERS. The Board of Directors at the first
meeting after the election of Directors may elect one of its own number Chairman
of the Board and one of its own number Vice Chairman of the Board; and it shall
elect one of its own number President. It may also elect one or more vice
presidents (one or more of whom may be designated Executive Vice President
and/or Senior Vice President and/or Vice President and Trust Officer), a
Cashier, a Secretary, and a Treasurer, and it may appoint such other officers as
the Board may deem advisable. Any two of said offices may be held by the same
person. Officers so elected shall hold office during the term of the Board by
whom they are elected, subject to the power of the Board to remove them at its
discretion. They shall be bonded in such amount and with such survey or sureties
as the Board of Directors shall require.
SECTION 8. MEETINGS OF THE BOARD. Regular meetings of the Board of
Directors shall be held on the third Tuesday of each month, or at such other
times as may be determined by the Board of Directors. Except as otherwise
provided by law, any business may be transacted at any regular meeting of the
Board of Directors. Special meetings shall be held upon the call of the Chairman
of the Board, if one be elected, or by the President, or in their absence, by a
Vice President or any three (3) Directors.
SECTION 9. NOTICE OF MEETINGS. The Secretary shall give notice of each
meeting of the Board of Directors, whether regular or special, to each member of
the Board.
SECTION 10. COMMITTEES.
SECTION 10.1 EXECUTIVE COMMITTEE. The Board of Directors shall appoint
any Executive Committee consisting of at least three (3) members, all of whom
may be members of the Board of Directors, or at least one (1) of whom shall be a
Director, the remainder to be officers of the Bank. Such Executive Committee
shall serve until their successors are appointed. A majority of the members of
said Committee shall constitute a quorum. The Executive Committee shall conduct
the business of the Company and shall have all the powers of the Board of
Directors when said Board is not in session, except that of declaring a
dividend. The Secretary of the Company shall keep a record of the Committee's
proceedings, which, signed by the Chairman of the Committee, shall be presented
at the meetings of the Committee and at the meetings of the Board of Directors.
SECTION 10.2 OTHER COMMITTEES. The Board of Directors shall appoint a
Trust Committee of which the Vice President and Trust Officer and at least three
(3) of its members who are not officers of the Company shall be members. The
Vice President and Trust Officer shall be Chairman of the Trust Committee. In
addition thereto, the Chairman of the Board, Chief Executive Officer, may
appoint such additional Committees, by and with the approval of the Board of
Directors, as may be deemed desirable or necessary.
Each such Committee, so appointed, shall have such powers and perform
such duties, not inconsistent with law, as may be delegated to it by the Board
of Directors.
SECTION 11. INDEMNIFICATION. The Company shall indemnify each Director
and each Officer of the Company, and each person employed by the Company who
serves at the written request of the President of the Company as a director,
trustee, officer, employee or agent of another corporation, domestic or foreign,
non-profit or for profit, partnership, joint venture, trust or other
13
<PAGE> 14
enterprise, to the full extent permitted by Ohio law. The term "Officer" as used
in this Section shall include the Chairman of the Board and the Vice Chairman of
the Board if such offices are filled, the President, each Vice President, the
Treasurer, the Secretary, the Cashier, the Controller, the Auditor, the Counsel
and any other person who is specifically designated as an "Officer" within the
operation of this Section by action of the Board of Directors. The Company may
indemnify assistant Officers, employees and others by action of the Board of
Directors to the extent permitted by Ohio law.
ARTICLE III
OFFICERS
SECTION 1. POWERS AND DUTIES. The Chairman of the Board if the office
be filled, otherwise the Vice Chairman of the Board, if the office be filled,
otherwise the President shall preside at all meetings of the Stockholders, the
Board of Directors, and the supervision and control over the business of the
Company and shall serve at the pleasure of the Board of Directors. In the
absence or disability of any of the foregoing officers, their respective duties
shall be performed by the Chairman of the Board, the Vice Chairman of the Board,
the President, or by a Vice President specifically designated by the Board of
Directors, in the order named.
The Secretary, or in his absence or disability, the Assistant
Secretary, shall act, ex officio, as Secretary of all meetings of the
Stockholders, the Board of Directors and the Executive Committee. The other
officers of the Company shall have such powers and duties as usually and
customarily attach to their offices.
ARTICLE IV
CERTIFICATES OF STOCK
SECTION 1. FORM. Certificates for shares of stock shall be signed by
the Chairman of the Board, or by the President, or by one of the Vice
Presidents, and by the Secretary or Treasurer or by the Cashier or an Assistant
Cashier, shall contain such statements as are required by law, and shall
otherwise be in such form as the Board of Directors may, from time to time,
require.
SECTION 2. TRANSFERS. Shares shall be transferable on the books of the
Company by the holders thereof in person or by duly authorized attorney upon
surrender of the certificates therefor with duly executed assignment endorsed
thereon or attached thereto.
SECTION 3. CLOSING OF TRANSFER BOOKS. The books for transfer of the
stock of the Company shall be closed for at least five (5) days preceding the
annual meeting of stockholders, and may be closed by order of the Board of
Directors, or Executive Committee, for a like period before any other meeting of
the Stockholders.
14
<PAGE> 15
ARTICLE V
AMENDMENTS
These regulations may be changed, and new regulations adopted by the
assent thereto in writing of two-thirds (2/3) of the Stockholders of the Company
in number an in amount; or by a majority of such Stockholders in number and in
amount, at a meeting held for that purpose, notice of which has been given by
the President, the Secretary, or any two (2) Directors personally or by written
notice, to each Stockholders, and by publication once a week for four (4)
consecutive weeks in some newspaper of general circulation in Hamilton County,
Ohio, or in such other manner as may then be authorized by the laws of Ohio.
15
<PAGE> 16
EXHIBIT 5
A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4
(NOT APPLICABLE)
16
<PAGE> 17
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B)
OF THE TRUST INDENTURE ACT OF 1939
[See Attached]
17
<PAGE> 18
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issuance of Debt Securities of
Health Care REIT, Inc., Fifth Third Bank hereby consents that reports of
examination by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
FIFTH THIRD BANK
By: /s/ CHRISTINE M. SCHAUB
---------------------------
Christine M. Schaub,
Vice President and Trust Officer
<PAGE> 19
EXHIBIT 7
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS
OF ITS SUPERVISING OR EXAMINING AUTHORITY
[See Attached]
<PAGE> 20
R E P O R T O F C O N D I T I O N
Consolidated Report of Condition of FIFTH THIRD BANK of CINCINNATI, OHIO and
Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at
the close of business on December 31, 1998, published in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS
Thousands
of Dollars
----------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................................... 502,214
Interest-bearing balances................................................. 996
Securities:
Held-to-maturity securities................................................... 4,916
Available-for-sale securities................................................. 2,853,814
Federal funds sold and securities purchased .................................. //////////
under agreements to resell ............................................... 325,900
Loans and lease financing receivables:
Loans and lease, net of unearned income..........................7,469,628
LESS: Allowance for loan and lease losses..........................106,477
LESS: Allocated transfer risk reserve....................................0
Loans and leases, net of unearned income, allowance,
and reserve............................................................... 7,363,151
Trading Assets ............................................................... 8,950
Premises and fixed assets (including capitalized leases)...................... 138,579
Other real estate owned....................................................... 1,030
Investments in unconsolidated subsidiaries and
associated companies...................................................... 0
Customers' liability to this bank on
acceptances outstanding................................................... 46,686
Intangible assets............................................................. 70,182
Other assets.................................................................. 409,458
Total assets.................................................................. 11,727,876
</TABLE>
<PAGE> 21
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.............................................................................. 5,134,343
Noninterest-bearing.....................................................................1,538,081
Interest-bearing........................................................................3,596,262
In foreign offices, Edge and Agreement subsidiaries,
and IBFs:........................................................................................ 353,824
Noninterest-bearing.............................................................................0
Interest-bearing..........................................................................353,824
Federal funds purchased and securities sold under agreements
to repurchase.................................................................................... 3,742,117
Demand notes issued to the U.S. Treasury............................................................. 2,768
Trading liabilities.................................................................................. 0
Other borrowed money (including mortgage indebtedness and obligations under capitalized leases):
.......................................................................................//////////
With a remaining maturity of one year or less.................................................... 100,542
With a remaining maturity of more than one year through three years........................... 202,000
With a remaining maturity of more than three years............................................... 0
Not applicable
Bank's liability on acceptances executed and outstanding............................................. 47,161
Subordinated notes and debentures.................................................................... 847,752
Other liabilities.................................................................................... 427,687
Total liabilities.................................................................................... 10,858,194
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................ 0
Common stock......................................................................................... 70,400
Surplus.............................................................................................. 212,048
Undivided profits and capital reserves............................................................... 566,331
Net unrealized holding gains (losses) on
available-for-sale securities.................................................................... 20,902
Cumulative foreign currency translation adjustments.................................................. 0
Total equity capital................................................................................. 896,628
Total liabilities and equity capital................................................................. 11,727,876
</TABLE>
<PAGE> 22
EXHIBIT 8
A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT
AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT
(NOT APPLICABLE)
<PAGE> 23
EXHIBIT 9
FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF
PROCESS OF FORM F-X
(NOT APPLICABLE)
