-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wl+5RSJrdW1j83Yz1/aYSS1nCPxgUgOHcC+4QHdQKdX0SjQmLrmTuDkcmg57S9LP 9aUQzwrgfr/xdQCymNXGfQ== 0000950123-03-010671.txt : 20030924 0000950123-03-010671.hdr.sgml : 20030924 20030924062228 ACCESSION NUMBER: 0000950123-03-010671 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20030826 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030924 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH CARE REIT INC /DE/ CENTRAL INDEX KEY: 0000766704 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 341096634 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08923 FILM NUMBER: 03906955 BUSINESS ADDRESS: STREET 1: ONE SEAGATE STE 1500 STREET 2: P O BOX 1475 CITY: TOLEDO STATE: OH ZIP: 43604 BUSINESS PHONE: 4192472800 8-K 1 l02861ae8vk.txt HEALTH CARE REIT, INC. 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): August 26, 2003 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 1 ITEM 5. OTHER EVENTS. Effective August 26, 2003, the Company and certain of its subsidiaries entered into Amendment No. 2 to Amended and Restated Loan Agreement ("Amendment No. 2") with Key Corporate Capital Inc., Deutsche Bank Trust Company Americas, Bank of America, N.A., Bank One, N.A., UBS AG, Cayman Islands Branch and Comerica Bank (the "Banks") and KeyBank National Association, as administrative agent for the Banks. Amendment No. 2 amends certain financial covenants contained in the loan agreement, as amended, to enhance the Company's financial flexibility. Effective September 10, 2003, the Company entered into Supplemental Indenture No. 5 to the Indenture, dated as of April 17, 1997 (as amended and supplemented), with Fifth Third Bank, as trustee (the "Trustee"), and Supplemental Indenture No. 2 to the Indenture, dated as of September 6, 2002 (as amended and supplemented), with the Trustee. Effective September 16, 2003, the Company entered into Amendment No. 1 to Supplemental Indenture No. 5 with the Trustee and Amendment No. 1 to Supplemental Indenture No. 2 with the Trustee. These supplemental indentures, as amended, modify the indentures to require us to (a) limit the use of secured debt to 40% of undepreciated total assets, (b) limit total debt to 60% of undepreciated total assets, and (c) maintain total unencumbered assets at 150% of total unsecured debt. In connection with the Company's Registration Statement on Form S-3 (File No. 333-107280), declared effective August 4, 2003, the Company has entered into an Underwriting Agreement for an offering of 3,200,000 shares of common stock, $1 par value, of the Company, plus up to an additional 480,000 shares of common stock if the over-allotment option granted therein is exercised in full. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 1.1 Underwriting Agreement 4.1 Supplemental Indenture No. 5 by and between the Company and Fifth Third Bank, dated September 10, 2003 4.2 Supplemental Indenture No. 2 by and between the Company and Fifth Third Bank, dated September 10, 2003 4.3 Amendment No. 1 to Supplemental Indenture No. 5 by and between the Company and Fifth Third Bank, dated September 16, 2003 4.4 Amendment No. 1 to Supplemental Indenture No. 2 by and between the Company and Fifth Third Bank, dated September 16, 2003 10.1 Amendment No. 2 to Amended and Restated Loan Agreement by and among the Company and certain of its subsidiaries, the banks signatory hereto and KeyBank National Association, as administrative agent for such banks, dated August 26, 2003 23.1 Consent of Independent Auditors 99.1 Press Release dated August 11, 2003 2 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 and Chief Executive Officer Dated: September 23, 2003 3 EXHIBIT INDEX
Designation Number Under Item 601 of Exhibit No. Regulation S-K Description - ----------- -------------- ----------- 1.1 1 Underwriting Agreement 4.1 4 Supplemental Indenture No. 5 by and between the Company and Fifth Third Bank, dated September 10, 2003 4.2 4 Supplemental Indenture No. 2 by and between the Company and Fifth Third Bank, dated September 10, 2003 4.3 4 Amendment No. 1 to Supplemental Indenture No. 5 by and between the Company and Fifth Third Bank, dated September 16, 2003 4.4 4 Amendment No. 1 to Supplemental Indenture No. 2 by and between the Company and Fifth Third Bank, dated September 16, 2003 10.1 10 Amendment No. 2 to Amended and Restated Loan Agreement by and among the Company and certain of its subsidiaries, the banks signatory hereto and KeyBank National Association, as administrative agent for such banks, dated August 26, 2003 23.1 23 Consent of Independent Auditors 99.1 99 Press Release dated August 11, 2003
4 EX-1.1 3 l02861aexv1w1.txt UNDERWRITING AGREEMENT Exhibit 1.1 EXECUTION COPY 3,200,000 SHARES HEALTH CARE REIT, INC. Common Stock ($1.00 Par Value) UNDERWRITING AGREEMENT ---------------------- September 23, 2003 Deutsche Bank Securities Inc. UBS Securities LLC As Representatives of the Several Underwriters c/o Deutsche Bank Securities Inc. 60 Wall Street, 3rd Floor New York, New York 10005 Gentlemen: Health Care REIT, Inc., a Delaware corporation (the "Company"), proposes to sell to the several underwriters (the "Underwriters") named in Schedule I hereto for whom you are acting as representatives (the "Representatives"), an aggregate of 3,200,000 shares (the "Firm Shares") of the Company's Common Stock, $1.00 par value per share ("Common Stock"). The Company also proposes to sell at the Underwriters' option an aggregate of up to 480,000 additional shares of the Company's Common Stock (the "Option Shares") as set forth below. As the Representatives, you have advised the Company (a) that you are authorized to enter into this Agreement and (b) that the Underwriters are willing to purchase the Firm Shares, plus such Option Shares if the Underwriters elect to exercise the over-allotment option in whole or in part for the account of the Underwriters. The Firm Shares and the Option Shares (to the extent such option is exercised) are herein collectively called the "Shares." In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows: 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants as follows: (i) A registration statement on Form S-3 (File No. 333-107280) with respect to the Shares has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission under the Act. The Company has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of Rule 430A of the Rules and Regulations) contained therein, the exhibits, financial statements and schedules, as finally amended and revised, and all documents incorporated by reference have heretofore been delivered by the Company to you. Such registration statement, herein referred to as the "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. 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 Shares by the Underwriters. Any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus, as the case may be, shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement. Any reference to the Prospectus herein shall be deemed to refer to and include the most recent prospectus supplement filed with respect to the Shares and shall also be deemed to include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act. (ii) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement; the Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would (a) have a materially adverse effect upon the business of the Company and its Subsidiaries, taken as a whole, (b) adversely affect the issuance, validity or enforceability of the Shares or (c) adversely affect the consummation of the transactions contemplated by this Agreement (each of (a), (b) and (c) above, a "Material Adverse Effect"); except for HCRI Pennsylvania Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green, Inc., HCRI Nevada Properties, Inc., Health Care REIT International, Inc., HCRI Southern Investments I, Inc., HCN BCC Holdings, Inc., HCRI Tennessee Properties, Inc., HCRI Limited Holdings, Inc., HCRI Texas Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP, Inc., HCN Atlantic LP, Inc., HCRI Louisiana Properties, L.P., HCRI North Carolina Properties, LLC, HCRI Massachusetts Properties, Inc., HCRI Massachusetts Properties Trust, HCRI Indiana Properties, Inc., HCRI Indiana Properties, LLC, HCRI Holdings Trust, HCRI Maryland Properties LLC, HCRI Satyr Hill, LLC, HCRI Friendship, LLC, HCRI St. Charles, LLC, HCRI Massachusetts Properties Trust II, HCRI Beachwood, Inc., HCRI Broadview, Inc., HCRI Westlake, Inc., HCRI Westmoreland, Inc., HCRI Wisconsin Properties, LLC, HCRI North Carolina Properties I, Inc., HCRI North 2 Carolina Properties II, Inc., HCRI North Carolina Properties III, Limited Partnership, HCRI Kentucky Properties, LLC, HCRI Laurel, LLC, HCRI Mississippi Properties, Inc., HCRI Illinois Properties, LLC, HCRI Missouri Properties, LLC, HCRI Surgical Properties, LLC, HCRI Tucson Properties, Inc., HCRI Stonecreek Properties, LLC, HCRI Cold Springs Properties, LLC, HCRI Eddy Pond Properties Trust and HCRI Investments, Inc., the Company has no operating Subsidiaries. (iii) The outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and are duly listed on the New York Stock Exchange; the Shares to be issued and sold by the Company have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully-paid and non-assessable; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof. (iv) The shares of authorized capital stock of the Company, including the Shares, conform with the statements concerning them in the Registration Statement and the Prospectus. (v) The Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that purpose. As of the date it became effective the Registration Statement contained, and the Prospectus, and any amendments or supplements thereto will contain, as of the date the Prospectus, such amendment or supplement is filed with the Commission, all statements which are required to be stated therein by, and in all material respects conform to or will conform to, as the case may be, the requirements of the Act and the Rules and Regulations. The documents incorporated by reference in the Prospectus, at the time they were or will be filed with the Commission, as the case may be, conformed or will conform at the time of filing, in all material respects to the requirements of the Exchange Act or the Act, as applicable, and the Rules and Regulations of the Commission thereunder. The Registration Statement did not, as of the date it became effective, contain and any amendment thereto, including any documents incorporated by reference therein, will not contain, any untrue statement of a material fact and did not omit and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendments and supplements thereto, as of the date of the Prospectus, the date such amendment or supplement is filed with the Commission and the Closing Date and the Option Closing Date, including any documents incorporated by reference therein, do not contain and will not contain, as the case may be, any untrue statement of a material fact and do not omit and will not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, or any documents incorporated by reference therein, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriters, specifically for use in the preparation thereof. (vi) The financial statements of the Company, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly the financial position and the results of operations of the Company at the indicated dates and for 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 3 therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the financial statements presented therein. (vii) There is no action or proceeding pending or, to the knowledge of the Company, threatened against the Company or involving any property of the Company before any court or administrative agency which might reasonably be expected to result in any Material Adverse Effect, except as set forth in the Registration Statement. (viii) The Company has good and marketable title to all of the properties and assets reflected in the financial statements hereinabove described (or as described in the Registration Statement as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such financial statements (or as described in the Registration Statement) or which are not material in amount or which do not interfere with the use made or proposed to be made of the property. The leases, agreements to purchase and mortgages to which the Company is a party, and the guaranties of third parties (a) are the legal, valid and binding obligations of the Company and, to the knowledge of the Company, of all other parties thereto, and the Company knows of no default or defenses currently existing with respect thereto which might reasonably be expected to result in any Material Adverse Effect, and (b) conform to the descriptions thereof set forth in the Registration Statement. Each mortgage which the Company holds on the properties described in the Registration Statement constitutes a valid mortgage lien for the benefit of the Company on such property. (ix) The Company has filed all Federal, state and foreign income tax returns which have been required to be filed and has paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith. All tax liabilities have been adequately provided for in the financial statements of the Company. (x) Since the 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) will have, or after any required notice and passage of any applicable grace period would have, a Material Adverse Effect. The consummation of the transactions herein contemplated and the fulfillment of the terms hereof 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 4 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 herein contemplated (except for the filing of a supplement to the Prospectus relating to the Shares or such additional steps as may be required by the National Association of Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the Shares for public offering by the Underwriters under state securities or Blue Sky laws) has been obtained or made by the Company, and is in full force and effect. (xiii) The Company holds all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of its businesses and the Company has not received any notice of infringement or of conflict with asserted rights of others with respect to any patents, patent rights, trade names, trademarks or copyrights, which infringement is material to the business of the Company. (xiv) The Company qualifies as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the taxable years ended December 31, 1984 through December 31, 2002 and no transaction or other event has occurred or is contemplated which would prevent the Company from so qualifying for its current taxable year. (xv) To the best of the Company's knowledge, Ernst & Young LLP, who have certified certain of the financial statements and related schedules filed with the Commission as part of, or incorporated by reference in, the Registration Statement, are independent public accountants as required by the Act and the Rules and Regulations. (xvi) To the knowledge of the Company, after inquiry of its officers and directors, there are no affiliations with the NASD among the Company's officers, directors, or principal stockholders, except as set forth in the Registration Statement or as otherwise disclosed in writing to the Underwriters. (xvii) This Agreement has 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 Company's Common Stock. The Company acknowledges that the Underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the Common Stock, including stabilizing bids, syndicate covering transactions and the imposition of penalty bids. (xix) The Shares have been approved for listing upon official notice of issuance on the New York Stock Exchange. (xx) The Company is not, and immediately after the sale of the Shares pursuant to the terms and conditions of this Agreement will not be, an "investment company" or a company 5 "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940. 2. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company agrees to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase, at a price of $28.74 per share, the Firm Shares. Payment for the Firm Shares to be sold hereunder is to be made by Federal Funds wire transfer to an account designated by the Company for the Firm Shares to be sold by the Company against delivery of the Firm Shares therefor to the Representatives through the facilities of The Depository Trust Company ("DTC"). Such payment and delivery are to be made at 10:00 a.m. New York time, on the third business day after the date of this Agreement or at such other time and date not later than three business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the "Closing Date." (As used herein, "business day" means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed). In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters to purchase severally the Option Shares at the price per share as set forth in the first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by giving notice (i) at any time before the Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement, by the Representatives to the Company setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which such certificates are to be delivered. The time and date at which the Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than three nor later than 10 full business days after the exercise of such option, nor in any event prior to the Closing Date (such time and date being herein referred to as the "Option Closing Date"). If the date of exercise of the option is three or more days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. The option with respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as Representatives of the several Underwriters, may cancel such option at any time prior to its expiration by giving written notice of such cancellation to the Company. To the extent, if any, that the option is exercised, payment for the Option Shares shall be made by Federal Funds wire transfer to an account designated by the Company for the Option Shares to be sold by the Company against delivery of the Option Shares through the facilities of DTC. Such payment and delivery are to be made at 10:00 a.m. New York time on the Option Closing Date. 3. OFFERING BY THE UNDERWRITERS. It is understood that the several Underwriters are to make a public offering of the Shares as soon as the Representatives deem it advisable to do so. The Shares are to be initially offered to the public at the public offering price and upon the terms set forth in the Prospectus. The Representatives may from time to time thereafter change the public offering price and other selling terms. 4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Underwriters that: (i) The Company will (a) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if the final form of the prospectus is not included in the Registration Statement at the time the Registration Statement is declared effective, a Prospectus 6 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 Shares for so long as the Representatives may deem necessary in order to complete the distribution of the Shares, (c) not file any amendment to the Registration Statement or supplement to the Prospectus, or document incorporated by reference therein, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Shares 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 Shares by the Underwriters; provided, however, that for each such report or definitive proxy or information statement, the Company will not file any such report or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations. (ii) The Company will advise the Representatives promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Shares, or of the suspension of the qualification of the Shares 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 Shares for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such stop order, if issued, or such suspension of qualification. (iii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, one signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, including documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. (iv) Subject to the provisions of Section 4(i) above, if during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus 7 as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (v) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to securityholders as soon as practicable an earnings statement in conformity with Rule 158 under the Act for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act. (vi) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. (vii) No offering, sale or other disposition of any Common Stock of the Company will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Representatives except that the Company may, without such consent, (i) issue securities under the Company's equity compensation plans for officers, employees, and non-employee directors described in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2002; (ii) issue shares upon the exercise of options or other stock rights issued pursuant to the Company's equity compensation plans for officers, employees, and non-employee directors described in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2002; (iii) sell shares of Common Stock pursuant to the Amended and Restated Dividend Reinvestment and Stock Purchase Plan filed with the Commission on May 21, 2003; or (iv) issue up to $30.0 million worth of one or more new series of convertible Preferred Stock, par value $1.00, and issue shares of Common Stock as required upon the exercise of the conversion rights of such Preferred Stock. 5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees incident to the performance of its obligations under this Agreement, including, without limiting the generality of the foregoing, the following: 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 applicable listing agreement for the New York Stock Exchange; 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 Shares; the fees incident to the listing agreement for the New York Stock Exchange. Any transfer taxes imposed on the sale of the Shares to the several Underwriters will be paid by the Company. The Company shall not, however, be required to pay for any of the Underwriters' expenses except that, if this Agreement shall not be consummated because the conditions in Section 7 hereof are not satisfied, or because this Agreement is terminated by the Representatives pursuant to Section 6 hereof, or this Agreement is terminated pursuant to Section 10(i)(a) hereof, or by reason of any failure, refusal or inability on the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of any Underwriter, then the Company shall reimburse the several Underwriters for reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing and proposing to market the Shares or in contemplation of performing its 8 obligations hereunder, but the Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits from the sale by it of the Shares. 6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date is subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions: (i) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated or threatened by the Commission. (ii) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, as representatives of the several Underwriters, to the effect that: (a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus. (b) The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would have a Material Adverse Effect. (c) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus or a referenced amendment or supplement thereto; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; all of the Shares conform in all material respects to the description thereof contained in the Prospectus; the certificates for the Shares are in due and proper form; the shares of Common Stock, including Option Shares, if any, to be sold by the Company pursuant to this Agreement have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof. (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 or the Exchange Act, as applicable, and Rules and Regulations (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). 9 (f) The statements under the caption "Description of Our Common Stock" in the Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present in all material respects the information called for with respect to such documents and matters. (g) The statements under the caption "Certain Government Regulations" in the Company's Annual Report on Form 10-K, and any amendments thereto, for the fiscal year ended December 31, 2002 as to matters of law stated therein, have been reviewed by such counsel and constitute fair summaries of the matters described therein which are material to the business or condition (financial or otherwise) of the Company. (h) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus or any amendment or supplement thereto which are not so filed, incorporated by reference or described as required, and such contracts and documents as are summarized in the Registration Statement or the Prospectus or any amendment or supplement thereto are fairly summarized in all material respects. (i) Such counsel knows of no material legal proceedings pending or threatened against the Company except as set forth in the Prospectus or any amendment or supplement thereto. (j) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated 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) 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 and the consummation of the transactions herein contemplated (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. (m) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940. In addition, either such counsel or Arnold & Porter, special tax counsel to the Company, will provide an opinion, based on such counsel's own review of the Company's certificate of incorporation, stating that the Company was organized and continues to be organized in 10 conformity with the requirements for qualification as a real estate investment trust under subchapter M of the Internal Revenue Code of 1986, as amended, (the "Code") and, based on such counsel's review of the Company's federal income tax returns and discussions with management and independent public accountants for the Company, that the Company, taking into account operations for its taxable and fiscal years ended December 31, 1999 through December 31, 2002, satisfied the requirements for qualification and taxation as a real estate investment trust under the Code for such years and that its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code for its taxable and fiscal year ending December 31, 2003. Furthermore, such counsel shall opine that the statements contained under the heading "U.S. Federal Income Tax Considerations" in the Registration Statement or Prospectus and under the heading "Taxation" in the Company's Annual Report on Form 10-K, and any amendments, for the fiscal year ended December 31, 2002 are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders. In rendering such opinion, such counsel may rely as to matters governed by the laws of states other than the laws of State of Ohio, the corporate laws of the State of Delaware or Federal laws on local counsel in such jurisdictions, provided that in such case such counsel shall state that they believe that they and the Underwriters are justified in relying on such other counsel and such other counsel shall indicate that the Underwriters may rely on such opinion. As to matters of fact, to the extent they deem proper, such counsel may rely on certificates of officers of the Company and public officials so long as such counsel states that they have no reason to believe that either the Representatives or they are not justified in relying on such certificates. In addition to the matters set forth above, the opinion of Shumaker, Loop & Kendrick, LLP shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that (a) the Registration Statement or any amendment thereto, as of the time it became effective under the Act, 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 (b) the Prospectus or any supplement thereto, on the date it was filed pursuant to Rule 424(b), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (y) the Registration Statement or any amendment thereto, or any of the documents incorporated by reference therein, as of the date of effectiveness of the Registration Statement or, in the case of documents incorporated by reference into the Prospectus after the date of effectiveness of the Registration Statement, as of the respective date when such documents were filed with the Commission, or as of the Closing Date or the Option Closing Date, as the case may be, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein), and (z) the Prospectus or any supplement thereto, as of the date it was filed pursuant to Rule 424(b), or as of the Closing Date or the Option Closing Date, as the case may be, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein). With respect to such statement, Shumaker, Loop & 11 Kendrick, LLP, may state that this statement is based upon the procedures set forth or incorporated by reference therein, but is without independent check and verification. (iii) The Representatives shall have received from Calfee, Halter & Griswold LLP, counsel for the Underwriters, an opinion dated the Closing Date or the Option Closing Date, as the case may be, with respect to the organization of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as the Representatives reasonably may request and such counsel shall have received such papers and information as they reasonably request to enable them to pass upon such matters. (iv) At the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a signed letter, in form and substance satisfactory to the Representatives, dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings. (v) With respect to the letter or letters of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Representatives a letter, in form and substance satisfactory to the Representatives (the "bring-down letter"), of such accountants, dated the Closing Date and the Option Closing Date, if any, (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters. (vi) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate or certificates of the Chairman of the Board and Chief Executive Officer and the President and Chief Financial Officer of the Company to the effect that as of the Closing Date or the Option Closing Date, as the case may be, 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) 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 12 warranties of the Company contained in Section 1 hereof are true and correct as of the Closing Date or the Option Closing Date, as the case may be. (c) He has carefully examined the Registration Statement and the Prospectus and in his opinion, as of the effective date of the Registration Statement, the statements contained in the Registration Statement, including any document incorporated by reference therein, were true and correct, and such Registration Statement and Prospectus, or any document incorporated by reference therein, did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in his opinion, since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such supplement or amendment. (vii) The Representatives shall have received at or prior to the Closing Date, an agreement, in form and substance satisfactory to the Representatives, signed by the directors and executive officers of the Company to the effect that they will not, prior to the expiration of 90 days from the date of this Agreement, offer, sell or otherwise dispose of any shares of Common Stock of the Company or any securities that the directors and executive officers has, or will have the right to acquire through the exercise of options, warrants, subscription or other rights without the prior written consent of the Representatives, except pursuant to (i) bona fide gifts to transferees who agree in writing to be bound by the restrictions on transfer set forth in this paragraph (vii), (ii) routine dispositions under Rule 10b5-1 Sales Plans entered into by certain directors and officers of the Company as of the date hereof, and (iii) the Company's equity compensation plans for officers, employees, and non-employee directors, but in no event shall the sales under this subsection (iii) of the executive officers and directors exceed 300,000 shares of Common Stock in the aggregate. (viii) The Shares to be sold by the Company as of the Closing Date or the Option Closing Date, as the case may be, shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to the Representatives and to Calfee, Halter & Griswold LLP, counsel for the Underwriters. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representatives by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Underwriters shall not be under any obligation to each other (except to the extent provided in Sections 5 and 8 hereof). 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the Company to sell and deliver the portion of the Shares required to be delivered as and when specified in this Agreement are subject to the conditions that at the Closing Date or the Option Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened. 13 8. INDEMNIFICATION. (i) The Company agrees to indemnify and hold harmless each Underwriter, its officer and directors, 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, (b) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, or (c) any act or failure to act, or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and will reimburse each such Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus, or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Representatives specifically for use in the preparation thereof; and provided further that as to any Preliminary Prospectus this indemnity agreement shall not inure to the benefit of any Underwriter, its officers and directors, or any person controlling the Underwriter on account of any loss, claim, damage, liability or action arising from the sale of any Shares to any person by that Underwriter if that Underwriter failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Preliminary Prospectus was corrected in the Prospectus, unless such failure resulted from non-compliance by the Company with Sections 4(iii), 4(iv) or 4(v). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (ii) Each Underwriter severally, but not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the 14 Company by or through the Representatives specifically for use in the preparation thereof. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have. (iii) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 8, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing. No indemnification provided for in Sections 8(i) or (ii) shall be available to any party who shall fail to give notice as provided in this Section 8(iii) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Sections 8(i) or (ii). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the indemnifying party shall not be entitled to assume the defense of such suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties and one local counsel. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified pursuant to Section 8(ii). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the fifth sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent to which the indemnification obligations of the Company hereunder are applicable if (a) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (b) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. (iv) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless to the extent required therein an indemnified party under Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is 15 appropriate to reflect the relative benefits received by the Company and the Underwriters from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(iii) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Underwriters in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Underwriters shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Underwriters bear to the total proceeds of the offering (the proceeds received by the Underwriters being equal to the total underwriting discounts and commissions received by the Underwriters), in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(iv), (a) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Shares 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. The Underwriters' obligations in this Section 8(iv) to contribute are several in proportion to their respective underwriting obligations and not joint. (v) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Prospectus or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party. 9. NOTICES. All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or telegraphed and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc., 60 Wall Street, 4th Floor, New York, New York, 10005, Attention: Equity Syndicate; 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 and Chief Executive Officer. 16 10. TERMINATION. This Agreement may be terminated by you by notice to the Company as follows: (i) at any time prior to the Closing Date or any Option Closing Date (if different from the Closing Date and then only as to the Option Shares) if any of the following has occurred: (a) since the date as of which information is given in the Prospectus (excluding any amendment, supplement thereto or document incorporated by reference therein filed after the date of this Agreement), any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business, (b) any outbreak or escalation of hostilities or declaration of war or national emergency after the date hereof or other national or international calamity or crisis or change in economic or political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets of the United States would, in your judgment, make the offering or delivery of the Shares impracticable or inadvisable, (c) trading in securities generally or in the Company's securities on the New York Stock Exchange or the American Stock Exchange shall have been suspended or materially limited (other than limitations on hours or numbers of days of trading) or minimum prices shall have been established for securities on either such Exchange, (d) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects or will materially or adversely affect the business or operations of the Company, (e) declaration of a banking moratorium by either federal or New York State authorities or material disruption in securities settlement or clearance services in the United States, (f) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States, or (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 (ii) as provided in Sections 6 and 11 of this Agreement. 11. DEFAULT BY UNDERWRITERS. If, on the Closing Date or on the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date (except in the event of a default on the part of the Company), and the aggregate principal amount of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is ten percent or less of the aggregate principal amount of Shares to be purchased on such date, the other Underwriters may make arrangements satisfactory to the Representatives, for the purchase of such Shares by other persons (who may include one or more of the non-defaulting Underwriters, including the Representatives), but if no such arrangements are made by the Closing Date or the Option Closing Date, as the case may be, the other Underwriters shall be obligated severally in the proportions that the principal amount of Shares set forth opposite their respective names in Schedule I hereto bears to the aggregate principal amount of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date or on the Option Closing Date, as the case may be, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate principal amount of Shares with respect to which such default (except in the event of a default on the part of the Company) occurs is more than ten percent of the aggregate principal amount of Shares to be purchased, and 17 arrangements satisfactory to the Representatives and the Company for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and/or in the Prospectus or in any other documents or arrangements may be effected. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section 11. Any action taken under this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 12. SUCCESSORS. This Agreement has been and is made solely for the benefit of the Underwriters and the Company and their respective successors, executors, administrators, heirs and assigns, and the officers, directors and controlling persons referred to herein, and no other person will have any right or obligation hereunder. The term "successors" shall not include any purchaser of the Shares merely because of such purchase. 13. INFORMATION PROVIDED BY UNDERWRITERS. The Company and the Underwriters acknowledge and agree that the only information furnished or to be furnished by the Underwriters to the Company for inclusion in any Prospectus or Registration Statement consists of the information set forth under the caption "Underwriting" in the Prospectus (other than the sixth (relating to expenses of the offering), seventh (relating to indemnification and contribution) and eighth (relating to lock-up arrangements) paragraphs thereof). 14. MISCELLANEOUS. The reimbursement, indemnification and contribution agreements contained in this Agreement and the representations, warranties and covenants in this Agreement shall remain in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its directors or officers and (iii) delivery of and payment for the Shares 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. [SIGNATURE PAGE TO FOLLOW.] 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 Underwriters in accordance with its terms. Very truly yours, HEALTH CARE REIT, INC. By: /s/ Raymond W. Braun -------------------------------- Raymond W. Braun, President and Chief Financial Officer The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC As Representatives of the Underwriters listed on Schedule I By: DEUTSCHE BANK SECURITIES INC. By: /s/ Carlos DelCristo ------------------------------------------------- Name: Carlos DelCristo ----------------------------------------------- By: /s/ Frank Comas ------------------------------------------------- Name: Frank Comas ----------------------------------------------- By: UBS SECURITIES LLC By: /s/ David Gately ------------------------------------------------- Name: David Gately ----------------------------------------------- By: /s/ Keith A. Lockwood ------------------------------------------------- Name: Keith A. Lockwood ----------------------------------------------- 19 SCHEDULE I SCHEDULE OF UNDERWRITERS
NUMBER OF SHARES TO UNDERWRITER BE PURCHASED - ----------- -------------------------- Deutsche Bank Securities Inc............................ 1,040,000 UBS Securities LLC...................................... 720,000 A.G. Edwards & Sons, Inc................................ 480,000 Legg Mason Wood Walker, Incorporated.................... 480,000 Banc of America Securities LLC.......................... 320,000 McDonald Investments Inc., a KeyCorp Company............ 160,000 -------------------------- Total.......................................... 3,200,000 ==========================
20 EX-4.1 4 l02861aexv4w1.txt EX-4.1 SUPPLEMENTAL INDENTURE #5 Exhibit 4.1 SUPPLEMENTAL INDENTURE NO. 5 BY AND BETWEEN HEALTH CARE REIT, INC. AND FIFTH THIRD BANK AS OF SEPTEMBER 10, 2003 SUPPLEMENTAL TO THE INDENTURE DATED AS OF APRIL 17, 1997 -------------------------------------------------------------- HEALTH CARE REIT, INC. 8.09% Notes due 2004 8.17% Notes due 2006 7.50% Notes due 2007 7.625% Notes due 2008 This Supplemental Indenture No. 5 ("Supplemental Indenture") is made and entered into as of September 10, 2003, between HEALTH CARE REIT, INC., a Delaware real estate investment trust (the "Company"), and FIFTH THIRD BANK, an Ohio banking corporation, as trustee (the "Trustee"). W I T N E S S E T H: WHEREAS, the Company and the Trustee executed and delivered an Indenture, dated as of April 17, 1997 (as amended, supplemented or otherwise modified from time to time, the "Indenture") to provide for the future issuance of the Company's debt securities (the "Securities") to be issued from time to time in one or more series; WHEREAS, pursuant to the terms of the Indenture, the Company and the Trustee executed and delivered (a) the First Supplemental Indenture, dated as of April 17, 1997, to provide for the establishment of a series of its Securities, to be known as its 8.09% Notes due 2004; (b) the Second Supplemental Indenture, dated as of March 13, 1998, to provide for the establishment of a series of its Securities, to be known as its 7.625% Notes due 2008; (c) the Third Supplemental Indenture, dated as of March 18, 1999, to provide for the establishment of a series of its Securities, to be known as its 8.17% Notes due 2006; and (d) the Fourth Supplemental Indenture, dated as of August 10, 2001, to provide for the establishment of a series of its Securities, to be known as its 7.50% Notes due 2007 (each as amended, supplemented or otherwise modified from time to time, collectively the "Existing Supplemental Indentures"); WHEREAS, pursuant to the terms of the Indenture and the Existing Supplemental Indentures, the Company and Trustee wish to amend certain covenants contained in the Existing Supplemental Indentures and Holders of not less than a majority in principal amount of the Outstanding Securities have consented to such amendments as required by Section 902 of the Indenture, subject to the terms and conditions hereinafter set forth; and WHEREAS, all capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Indenture and Existing Supplemental Indentures. NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: ARTICLE 1. AMENDMENTS TO EXISTING SUPPLEMENTAL INDENTURES. Section 1.1 Each of the Existing Supplemental Indentures are hereby amended as follows: (a) Section 1.2 is hereby amended to include the following additional defined terms: "Cash" means as to any Person, such Person's cash and cash equivalents, as defined in accordance with GAAP consistently applied. "Total Assets" means on any date, the consolidated total assets of the Company and its Subsidiaries, as such amount would appear on a consolidated balance sheet of the Company prepared as of such date in accordance with GAAP. "Total Unencumbered Assets" means on any date, net real estate investments (valued on a book basis) of the Company and its Subsidiaries that are not subject to any Lien which secures indebtedness for borrowed money of any of the Company and its Subsidiaries plus, without duplication, loan loss reserves relating thereto, accumulated depreciation thereon plus Cash, as all such amounts would appear on a consolidated balance sheet of the Company prepared as of such date in accordance with GAAP. "Unsecured Debt" means Funded Indebtedness less Indebtedness secured by Liens on the property or assets of the Company and its subsidiaries. "Funded Indebtedness" means as of any date of determination thereof, (i) all Indebtedness of any Person, determined in accordance with GAAP, which by its terms matures more than one year after the date of calculation, and any such Indebtedness maturing within one year from such date which is renewable or extendable at the option of the obligor to a date more than one year from such date, and (ii) the current portion of all such Indebtedness. (b) Subsection 2.4(a)(i) is deleted in its entirety and the following is substituted therefor: (i) Liens securing obligations that do not in the aggregate at any one time outstanding exceed 40% of the sum of (i) the Total Assets of the Company and its consolidated subsidiaries as of the end of the calendar year or quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Liens and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Indebtedness), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Liens; (c) Subsection 2.4(b) is deleted in its entirety and the following is substituted therefor: (b) The Company will not create, assume, incur, or otherwise become liable in respect of, any Indebtedness if the aggregate outstanding principal amount of Indebtedness of the Company and its consolidated subsidiaries is, at the time of such creation, assumption or incurrence and after giving effect thereto and to any concurrent transactions, greater than 60% of the sum of (i) the Total Assets of the Company and its consolidated subsidiaries as of the end of the calendar year or quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed 2 with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Indebtedness and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Indebtedness), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Indebtedness. (d) Subsection 2.4(d) is deleted in its entirety and the following is substituted therefor: (d) The Company will maintain as of the last day of each of the Company's fiscal quarters, Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. (e) A new subsection 2.4(e) is added reading as follows: (e) For purposes of this Section 2.4, Indebtedness and 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. ARTICLE 2. EFFECTIVENESS. SECTION 2.1 This Supplemental Indenture shall be effective for all purposes as of the date and time this Supplemental Indenture has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented and amended hereby, the Indenture and Existing Supplemental Indentures are hereby confirmed as being in full force and effect. ARTICLE 3. MISCELLANEOUS. SECTION 3.1 In the event any provision of this Supplemental Indenture shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof or any provisions of the Indenture or Existing Supplemental Indentures. SECTION 3.2 To the extent any terms of this Supplemental Indenture are inconsistent with the terms of the Indenture or Existing Supplemental Indentures, the terms of this Supplemental Indenture shall govern and supercede such inconsistent terms. SECTION 3.3 This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of Delaware. SECTION 3.4 This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 3 IN WITNESS WHEREOF, the Company and the Trustee have caused this Supplemental Indenture to be executed as an instrument under seal in their respective corporate names as of the date first above written. HEALTH CARE REIT, INC. By: /s/ George L. Chapman --------------------------------------------- Name: George L. Chapman Title: Chairman and Chief Executive Officer FIFTH THIRD BANK, as Trustee By: /s/ Christine M. Schaub --------------------------------------------- Name: Christine M. Schaub Title: Vice President EX-4.2 5 l02861aexv4w2.txt EX-4.2 SUPPLEMENTAL INDENTURE #2 Exhibit 4.2 SUPPLEMENTAL INDENTURE NO. 2 BY AND BETWEEN HEALTH CARE REIT, INC. AND FIFTH THIRD BANK AS OF SEPTEMBER 10, 2003 SUPPLEMENTAL TO THE INDENTURE DATED AS OF SEPTEMBER 6, 2002 -------------------------------------------------------------- HEALTH CARE REIT, INC. 8.00% Senior Notes due 2012 This SUPPLEMENTAL INDENTURE NO. 2 ("Supplemental Indenture") is made and entered into as of September 10, 2003, between HEALTH CARE REIT, INC., a Delaware real estate investment trust (the "Company"), and FIFTH THIRD BANK, an Ohio banking corporation, as trustee (the "Trustee"). W I T N E S S E T H: WHEREAS, the Company and the Trustee executed and delivered an Indenture, dated as of September 6, 2002 (as amended, supplemented or otherwise modified from time to time, the "Indenture") to provide for the future issuance of the Company's senior debt securities (the "Securities") to be issued from time to time in one or more series; WHEREAS, pursuant to the terms of the Indenture, the Company and the Trustee executed and delivered Supplemental Indenture No. 1, dated as of September 6, 2002 (as amended, supplemented or otherwise modified from time to time, the "Existing Supplemental Indenture") to provide for the establishment of a series of its Securities, to be known as its 8.00% Senior Notes due 2012; WHEREAS, pursuant to the terms of the Indenture and the Existing Supplemental Indenture, the Company and Trustee wish to amend certain covenants contained in the Existing Supplemental Indenture and Holders of not less than a majority in principal amount of the Outstanding Securities have consented to such amendments as required by Section 902 of the Indenture, subject to the terms and conditions hereinafter set forth; and WHEREAS, all capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Indenture and Existing Supplemental Indenture. NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: ARTICLE 1. AMENDMENTS TO EXISTING SUPPLEMENTAL INDENTURE. Section 1.1 The Existing Supplemental Indenture is hereby amended as follows: (a) Section 1.1 is hereby amended to include the following additional defined terms: "Cash" means as to any Person, such Person's cash and cash equivalents, as defined in accordance with GAAP consistently applied. "Total Assets" means on any date, the consolidated total assets of the Company and its Subsidiaries, as such amount would appear on a consolidated balance sheet of the Company prepared as of such date in accordance with GAAP. "Total Unencumbered Assets" means on any date, net real estate investments (valued on a book basis) of the Company and its Subsidiaries that are not subject to any Lien which secures indebtedness for borrowed money of any of the Company and its Subsidiaries without duplication, loan loss reserves relating thereto, accumulated depreciation thereon plus Cash, as all such amounts would appear on a consolidated balance sheet of the Company prepared as of such date in accordance with GAAP. "Unsecured Debt" means Funded Indebtedness less Indebtedness secured by Liens on the property or assets of the Company and its subsidiaries. "Funded Indebtedness" means as of any date of determination thereof, (i) all Indebtedness of any Person, determined in accordance with GAAP, which by its terms matures more than one year after the date of calculation, and any such Indebtedness maturing within one year from such date which is renewable or extendable at the option of the obligor to a date more than one year from such date, and (ii) the current portion of all such Indebtedness. (b) Subsection 3.1(a)(i) is deleted in its entirety and the following is substituted therefor: (i) Liens securing obligations that do not in the aggregate at any one time outstanding exceed 40% of the sum of (i) the Total Assets of the Company and its consolidated subsidiaries as of the end of the calendar year or quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Liens and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Indebtedness), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Liens; (c) Subsection 3.1(b) is deleted in its entirety and the following is substituted therefor: (b) The Company will not create, assume, incur, or otherwise become liable in respect of, any Indebtedness if the aggregate outstanding principal amount of Indebtedness of the Company and its consolidated subsidiaries is, at the time of such creation, assumption or incurrence and after giving effect thereto and to any concurrent transactions, greater than 60% of the sum of (i) the Total Assets of the Company and its consolidated subsidiaries as of the end of the calendar year or quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Indebtedness and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Indebtedness), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Indebtedness. 2 (d) Subsection 3.1(d) is deleted in its entirety and the following is substituted therefor: (d) The Company will maintain as of the last day of each of the Company's fiscal quarters, Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. (e) A new subsection 3.1(e) is added reading as follows: (e) For purposes of this Section 3, Indebtedness and 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. ARTICLE 2. EFFECTIVENESS. SECTION 2.1 This Supplemental Indenture shall be effective for all purposes as of the date and time this Supplemental Indenture has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented and amended hereby, the Indenture and Existing Supplemental Indenture are hereby confirmed as being in full force and effect. ARTICLE 3. MISCELLANEOUS. SECTION 3.1 In the event any provision of this Supplemental Indenture shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof or any provisions of the Indenture or Existing Supplemental Indenture. SECTION 3.2 To the extent any terms of this Supplemental Indenture are inconsistent with the terms of the Indenture or Existing Supplemental Indenture, the terms of this Supplemental Indenture shall govern and supercede such inconsistent terms. SECTION 3.3 This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of Delaware. SECTION 3.4 This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 3 IN WITNESS WHEREOF, the Company and the Trustee have caused this Supplemental Indenture to be executed as an instrument under seal in their respective corporate names as of the date first above written. HEALTH CARE REIT, INC. By: /s/ George L. Chapman --------------------------------------------- Name: George L. Chapman Title: Chairman and Chief Executive Officer FIFTH THIRD BANK, as Trustee By: /s/ Christine M. Schaub --------------------------------------------- Name: Christine M. Schaub Title: Vice President EX-4.3 6 l02861aexv4w3.txt AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 5 Exhibit 4.3 AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 5 BY AND BETWEEN HEALTH CARE REIT, INC. AND FIFTH THIRD BANK AS OF SEPTEMBER 16, 2003 SUPPLEMENTAL TO THE INDENTURE DATED AS OF APRIL 17, 1997 -------------------------------------------------------------- HEALTH CARE REIT, INC. 8.09% Notes due 2004 8.17% Notes due 2006 7.50% Notes due 2007 7.625% Notes due 2008 AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 5 ----------------------------------------------- This AMENDMENT NO. 1 ("Amendment No. 1") is made and entered into as of September 16, 2003, between HEALTH CARE REIT, INC., a Delaware real estate investment trust (the "Company"), and FIFTH THIRD BANK, an Ohio banking corporation, as trustee (the "Trustee"). W I T N E S S E T H: -------------------- WHEREAS, the Company and the Trustee executed and delivered an Indenture, dated as of April 17, 1997 (as amended, supplemented or otherwise modified from time to time, the "Indenture") to provide for the future issuance of the Company's debt securities (the "Securities") to be issued from time to time in one or more series; WHEREAS, pursuant to the terms of the Indenture, the Company and the Trustee executed and delivered (a) the First Supplemental Indenture, dated as of April 17, 1997, to provide for the establishment of a series of its Securities, to be known as its 8.09% Notes due 2004; (b) the Second Supplemental Indenture, dated as of March 13, 1998, to provide for the establishment of a series of its Securities, to be known as its 7.625% Notes due 2008; (c) the Third Supplemental Indenture, dated as of March 18, 1999, to provide for the establishment of a series of its Securities, to be known as its 8.17% Notes due 2006; (d) the Fourth Supplemental Indenture, dated as of August 10, 2001, to provide for the establishment of a series of its Securities, to be known as its 7.50% Notes due 2007; and (e) Supplemental Indenture No. 5, dated as of September 10, 2003, to amend certain provisions of the supplemental indentures described in items (a) through (d) above ("Supplemental Indenture No. 5") (each as amended, supplemented or otherwise modified from time to time, collectively the "Supplemental Indentures"); WHEREAS, pursuant to the terms of the Indenture and the Supplemental Indentures, the Company and Trustee wish to amend certain provisions contained in Supplemental Indenture No. 5, subject to the terms and conditions hereinafter set forth; and WHEREAS, all capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Indenture and Supplemental Indentures. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. AMENDMENTS TO SUPPLEMENTAL INDENTURE NO. 5. Section 1.1 Supplemental Indenture No. 5 is hereby amended as follows: (a) Section 1.1(d) is deleted in its entirety and the following is substituted therefor: (d) The Company will maintain, as of the last day of each of the Company's fiscal quarters and at all times, Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. ARTICLE 2. EFFECTIVENESS. -------------- SECTION 2.1 This Amendment No. 1 shall be effective for all purposes as of the date and time this Amendment No. 1 has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented and amended hereby, the Indenture and Supplemental Indentures are hereby confirmed as being in full force and effect. ARTICLE 3. MISCELLANEOUS. -------------- SECTION 3.1 In the event any provision of this Amendment No. 1 shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof or any provisions of the Indenture or Supplemental Indentures. SECTION 3.2 To the extent any terms of this Amendment No. 1 are inconsistent with the terms of the Indenture or Supplemental Indentures, the terms of this Amendment No. 1 shall govern and supercede such inconsistent terms. SECTION 3.3 This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of Delaware. SECTION 3.4 This Amendment No. 1 may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 2 IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment No. 1 to be executed as an instrument under seal in their respective corporate names as of the date first above written. HEALTH CARE REIT, INC. By: /s/ George L. Chapman ----------------------------------------- Name: George L. Chapman Title: Chairman and Chief Executive Officer FIFTH THIRD BANK, as Trustee By: /s/ Christine M. Schaub ----------------------------------------- Name: Christine M. Schaub Title: Vice President EX-4.4 7 l02861aexv4w4.txt AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 2 Exhibit 4.4 AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 2 BY AND BETWEEN HEALTH CARE REIT, INC. AND FIFTH THIRD BANK AS OF SEPTEMBER 16, 2003 SUPPLEMENTAL TO THE INDENTURE DATED AS OF SEPTEMBER 6, 2002 -------------------------------------------------------------- HEALTH CARE REIT, INC. 8.00% Senior Notes due 2012 AMENDMENT NO. 1 TO SUPPLEMENTAL INDENTURE NO. 2 ----------------------------------------------- This AMENDMENT NO. 1 ("Amendment No. 1") is made and entered into as of September 16, 2003, between HEALTH CARE REIT, INC., a Delaware real estate investment trust (the "Company"), and FIFTH THIRD BANK, an Ohio banking corporation, as trustee (the "Trustee"). W I T N E S S E T H: -------------------- WHEREAS, the Company and the Trustee executed and delivered an Indenture, dated as of September 6, 2002 (as amended, supplemented or otherwise modified from time to time, the "Indenture") to provide for the future issuance of the Company's senior debt securities (the "Securities") to be issued from time to time in one or more series; WHEREAS, pursuant to the terms of the Indenture, the Company and the Trustee executed and delivered (a) Supplemental Indenture No. 1, dated as of September 6, 2002, to provide for the establishment of a series of its Securities, to be known as its 8.00% Senior Notes due 2012 ("Supplemental Indenture No. 1"); and (b) Supplemental Indenture No. 2, dated as of September 10, 2003, to amend certain provisions of Supplemental Indenture No. 1 ("Supplemental Indenture No. 2") (each as amended, supplemented or otherwise modified from time to time, the "Supplemental Indentures"); WHEREAS, pursuant to the terms of the Indenture and the Supplemental Indentures, the Company and Trustee wish to amend certain provisions contained in Supplemental Indenture No. 2, subject to the terms and conditions hereinafter set forth; and WHEREAS, all capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Indenture and Supplemental Indentures. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. AMENDMENTS TO SUPPLEMENTAL INDENTURE NO. 2. ------------------------------------------- Section 1.1 Supplemental Indenture No. 2 is hereby amended as follows: (a) Section 1.1(d) is deleted in its entirety and the following is substituted therefor: (d) The Company will maintain, as of the last day of each of the Company's fiscal quarters and at all times, Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. ARTICLE 2. EFFECTIVENESS. -------------- SECTION 2.1 This Amendment No. 1 shall be effective for all purposes as of the date and time this Amendment No. 1 has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented and amended hereby, the Indenture and Supplemental Indentures are hereby confirmed as being in full force and effect. ARTICLE 3. MISCELLANEOUS. -------------- SECTION 3.1 In the event any provision of this Amendment No. 1 shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof or any provisions of the Indenture or Supplemental Indentures. SECTION 3.2 To the extent any terms of this Amendment No. 1 are inconsistent with the terms of the Indenture or Supplemental Indentures, the terms of this Amendment No. 1 shall govern and supercede such inconsistent terms. SECTION 3.3 This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of Delaware. SECTION 3.4 This Amendment No. 1 may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 2 IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment No. 1 to be executed as an instrument under seal in their respective corporate names as of the date first above written. HEALTH CARE REIT, INC. By: /s/ George L. Chapman ------------------------------------------- Name: George L. Chapman Title: Chairman and Chief Executive Officer FIFTH THIRD BANK, as Trustee By: /s/ Christine M. Schaub ------------------------------------------- Name: Christine M. Schaub Title: Vice President EX-10.1 8 l02861aexv10w1.txt EX-10.1 AMEND #2 TO AMENDED AND RESTATED LOAN AGMT Exhibit 10.1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT BY AND AMONG HEALTH CARE REIT, INC. AND CERTAIN OF ITS SUBSIDIARIES, THE BANKS SIGNATORY HERETO AND KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT FOR SUCH BANKS, DEUTSCHE BANK SECURITIES INC., AS SYNDICATION AGENT AND UBS SECURITIES LLC (AS SUCCESSOR-IN-INTEREST TO UBS WARBURG LLC), AS DOCUMENTATION AGENT AUGUST 26, 2003 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- KEYBANK NATIONAL ASSOCIATION AND DEUTSCHE BANK SECURITIES INC., AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT ------------------------------------------------------ AGREEMENT (this "AMENDMENT NO. 2"), made as of the 26th day of August, 2003, by and among: HEALTH CARE REIT, INC., a Delaware corporation, and each of the other entities listed on Exhibit 1 annexed hereto (individually, a "BORROWER" and collectively, THE "BORROWERS"); The Banks that have executed the signature pages hereto (individually, a "BANK" and, collectively, the "BANKS"); and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Banks (in such capacity, together with its successors in such capacity, the "AGENT"). W I T N E S S E T H: WHEREAS: (A) The Borrowers, the Agent, Deutsche Bank Securities Inc., as Syndication Agent, UBS Warburg LLC, as Documentation Agent and the banks signatory thereto entered into a certain Amended and Restated Loan Agreement dated August 23, 2002, as amended by Amendment No. 1 to Amended and Restated Loan Agreement dated as of May 15, 2003 (as so amended, the "ORIGINAL LOAN AGREEMENT"; the Original Loan Agreement, as amended hereby, and as it may hereafter be further amended, modified or supplemented, is hereinafter referred to as the "LOAN AGREEMENT"); (B) The Borrowers wish to amend certain covenants contained in the Original Loan Agreement and the Banks and the Agent are willing to amend the Original Loan Agreement on the terms and conditions hereinafter set forth; and (C) All capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Original Loan Agreement. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. AMENDMENTS TO ORIGINAL LOAN AGREEMENT. SECTION 1.1 The Original Loan Agreement is hereby amended as follows: (a) The definition of "Funded Indebtedness" appearing in Article 1 is deleted in its entirety and the following is substituted therefor: "'Funded Indebtedness' - as of any date of determination thereof, (i) all Indebtedness of any Person, determined in accordance with GAAP, which by its terms matures more than one year after the date of calculation, and any such Indebtedness maturing within one year from such date which is renewable or extendable at the option of the obligor to a date more than one year from such date, including, in any event, the Revolving Credit Loans, and (ii) the current portion of all such Indebtedness." (b) Subsection 6.9(a) is deleted in its entirety and the following is substituted therefor: "(a) A ratio of Funded Indebtedness to the sum of (x) Tangible Net Worth, plus (y) Funded Indebtedness (the "LEVERAGE RATIO") of not more than 0.60:1.00." (c) Subsection 6.9(d) is deleted in its entirety and the following is substituted therefor: "(d) A ratio of Unencumbered Assets to unsecured Indebtedness of not less than 1.95:1.00." (d) Subsection 7.1(f) is deleted in its entirety and the following is substituted therefor: "(f) In addition to the Indebtedness otherwise permitted under this Section 7.1, Indebtedness secured by Liens provided that immediately after giving effect to the incurrence of such Indebtedness: the total outstanding amount of such Indebtedness of HCRI, on a consolidated basis, plus the total outstanding amount of Indebtedness permitted under subsection 7.1(c), does not exceed thirty (30%) percent of Consolidated Total Assets, and, provided further, the total outstanding amount of any such Indebtedness which is on a recourse basis to HCRI or any of its Subsidiaries, plus the total outstanding amount of Indebtedness permitted under subsection 7.1(c), does not exceed fifteen (15%) percent of Consolidated Total Assets; and" SECTION 1.2 (a) All references in the Original Loan Agreement and the other Loan Documents to the "Loan Agreement", and also in the case of the Original Loan Agreement to "this Agreement", shall be deemed to refer to the Original Loan Agreement, as amended hereby. (b) The Original Loan Agreement and the other Loan Documents shall each be deemed amended and supplemented hereby to the extent necessary, if any, to give effect to the provisions of this Agreement. ARTICLE 2. REPRESENTATIONS AND WARRANTIES. (a) The Borrowers hereby confirm, reaffirm and restate to each of the Banks and the Agent all of the representations and warranties set forth in Article 3 of the Original Loan Agreement as if such representations and warranties were made as of the date hereof, except for changes in the ordinary course of business which, either singly or in the aggregate, would not have a Material Adverse Effect. 2 (b) (i) The execution, delivery and performance by each Borrower of this Amendment No. 2 are within its organizational powers and have been duly authorized by all necessary action (corporate or otherwise) on the part of each Borrower, (ii) this Amendment No. 2 is the legal, valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its respective terms, and (iii) the execution, delivery and performance by each Borrower of this Amendment No. 2 does not: (A) contravene the terms of any Borrower's organizational documents, (B) conflict with or result in a breach or contravention of, or the creation of any lien under, any document evidencing any contractual obligation to which any Borrower is a party or any order, injunction, writ or decree to which any Borrower or its property is subject, or (C) violate any requirement of law. ARTICLE 3. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT. This Amendment No. 2 shall become effective on the date of the fulfillment (to the satisfaction of the Agent) of the following conditions precedent: (a) This Amendment No. 2 shall have been executed and delivered to the Agent by a duly authorized representative of the Borrowers, the Agent and the Required Banks. (b) The Borrowers shall pay to the Agents all fees payable to the Banks in connection with this Amendment No. 2. (c) All legal matters incident hereto shall be satisfactory to the Agent and its counsel. ARTICLE 4. MISCELLANEOUS. SECTION 4.1 Article 10 of the Original Loan Agreement. The miscellaneous provisions under Article 10 of the Original Loan Agreement, together with the definition of all terms used therein, and all other sections of the Original Loan Agreement to which Article 10 refers are hereby incorporated by reference as if the provisions thereof were set forth in full herein, except that (i) the term "Loan Agreement" shall be deemed to refer, respectively, to the Original Loan Agreement, as amended by this Amendment No. 2, (ii) the term "this Agreement" shall be deemed to refer to this Amendment No. 2; and (iii) the terms "hereunder" and "hereto" shall be deemed to refer to this Amendment No. 2. SECTION 4.2 Amendment Fee. In the event that the Required Banks execute and deliver this Amendment No. 2, the Borrowers shall pay to the Agent for the benefit of each Bank that executes and delivers this Amendment No. 2 no later than 5:00 p.m. on Tuesday, August 26, 2003 (the "AMENDMENT FEE DATE"), a non-refundable amendment fee equal to the product of (a) 0.125% (i.e., 12.5 basis points) multiplied by (b) the Revolving Credit Commitment of such Bank as of the Amendment Fee Date. 3 SECTION 4.3 Continued Effectiveness. Except as amended hereby, the Original Loan Agreement and the other Loan Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms. SECTION 4.4 Counterparts. This Amendment No. 2 may be executed by the parties hereto in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. [SIGNATURE PAGES TO FOLLOW] 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed on the date first above written. HEALTH CARE REIT, INC. HCRI PENNSYLVANIA PROPERTIES, INC. HCRI TEXAS PROPERTIES, INC. HCRI TEXAS PROPERTIES, LTD. BY HEALTH CARE REIT, INC., ITS GENERAL PARTNER HCRI NEVADA PROPERTIES, INC. HCRI LOUISIANA PROPERTIES, L.P. BY HCRI SOUTHERN INVESTMENTS I, INC., ITS GENERAL PARTNER HEALTH CARE REIT INTERNATIONAL, INC. HCN ATLANTIC GP, INC. HCN ATLANTIC LP, INC. HCN BCC HOLDINGS, INC. HCRI INDIANA PROPERTIES, INC. HCRI INDIANA PROPERTIES, LLC BY HEALTH CARE REIT, INC., ITS MEMBER HCRI LIMITED HOLDINGS, INC. HCRI MASSACHUSETTS PROPERTIES, INC. HCRI MASSACHUSETTS PROPERTIES TRUST BY HCRI MASSACHUSETTS PROPERTIES, INC. ITS TRUSTEE HCRI HOLDINGS TRUST BY HCRI MASSACHUSETTS PROPERTIES, INC. ITS TRUSTEE HCRI NORTH CAROLINA PROPERTIES, LLC BY NORTH CAROLINA PROPERTIES I, INC. ITS MEMBER HCRI SOUTHERN INVESTMENTS I, INC. HCRI TENNESSEE PROPERTIES, INC. PENNSYLVANIA BCC PROPERTIES, INC. HCRI KENTUCKY PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI MASSACHUSETTS PROPERTIES TRUST II BY HCRI MASSACHUSETTS PROPERTIES, INC. ITS TRUSTEE HCRI SATYR HILL, LLC BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI MARYLAND PROPERTIES, LLC ITS MEMBER HCRI FRIENDSHIP, LLC BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI MARYLAND PROPERTIES, LLC ITS MEMBER HCRI ST. CHARLES, LLC BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI MARYLAND PROPERTIES, LLC ITS MEMBER [BORROWERS CONTINUED ON FOLLOWING PAGE] HCRI MARYLAND PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI LAUREL, LLC BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI MARYLAND PROPERTIES, LLC ITS MEMBER HCRI NORTH CAROLINA PROPERTIES I, INC. HCRI NORTH CAROLINA PROPERTIES III, LP BY HCRI NORTH CAROLINA PROPERTIES II, INC. ITS GENERAL PARTNER HCRI NORTH CAROLINA PROPERTIES II, INC. HCRI WISCONSIN PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI MISSISSIPPI PROPERTIES, INC. HCRI ILLINOIS PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI MISSOURI PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI SURGICAL PROPERTIES, LLC BY HEALTH CARE REIT, INC. ITS MEMBER HCRI TUCSON PROPERTIES, INC. BY /S/ GEORGE L. CHAPMAN ------------------------------------------------ CHIEF EXECUTIVE OFFICER GEORGE L. CHAPMAN, as Chief Executive Officer of all of the aforementioned entities, has executed this Amendment No. 2 to Amended and Restated Loan Agreement and intending that all entities above named are bound and are to be bound by the one signature as if he had executed this Amendment No. 2 to Amended and Restated Loan Agreement separately for each of the above named entities. Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 KEY CORPORATE CAPITAL INC., AS A BANK By: /s/ F. Donald Kelly III ------------------------------------- Name: F. Donald Kelly III Title: Vice President KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT By: /s/ F. Donald Kelly III ------------------------------------- Name: F. Donald Kelly III Title: Vice President Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 DEUTSCHE BANK TRUST COMPANY AMERICAS By:/s/ Mary Kay Coyle ---------------------------------------- Name: Mary Kay Coyle Title: Managing Director Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 BANK OF AMERICA, N.A. By: /s/ Kevin Wagley ------------------------------------- Name: Kevin Wagley ----------------------------- Title: Principal ----------------------------- Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 BANK ONE, N.A. By: /s/ Jan E. Petrik ------------------------------------- Name: Jan E. Petrik ----------------------------- Title: First Vice President ----------------------------- Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 UBS AG, CAYMAN ISLANDS BRANCH By: /s/ Patricia O'Kicki ------------------------------------- Name: Patricia O'Kicki ----------------------------- Title: Director ----------------------------- By: /s/ Luke Goldsworthy ------------------------------------- Name: Luke Goldsworthy ----------------------------- Title: Associate Director ----------------------------- Banking Products Services, US ----------------------------- Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 COMERICA BANK By: /s/ Dawn M. Morgulec ------------------------------------- Name: Dawn M. Morgulec ----------------------------- Title: Account Officer ----------------------------- Health Care REIT, Inc. Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement Dated as of August 26, 2003 EXHIBIT 1 TO AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT BY AND AMONG HEALTH CARE REIT, INC. AND CERTAIN OF ITS SUBSIDIARIES, THE BANKS SIGNATORY HERETO AND KEYBANK NATIONAL ASSOCIATION, AS AGENT -------------------------------------- LIST OF BORROWERS ----------------- NAME OF BORROWER STATE OF ORGANIZATION - ----------------- --------------------- Health Care REIT, Inc. Delaware HCRI Pennsylvania Properties, Inc. Pennsylvania HCRI Texas Properties, Inc. Delaware HCRI Texas Properties, Ltd. Texas HCRI Nevada Properties, Inc. Nevada HCRI Louisiana Properties, L.P. Delaware Health Care REIT International, Inc. Delaware HCN Atlantic GP, Inc. Delaware HCN Atlantic LP, Inc. Delaware HCN BCC Holdings, Inc. Delaware HCRI Indiana Properties, Inc. Delaware HCRI Indiana Properties, LLC Indiana HCRI Limited Holdings, Inc. Delaware HCRI Massachusetts Properties Trust Massachusetts HCRI Massachusetts Properties, Inc. Delaware HCRI Holdings Trust Massachusetts HCRI North Carolina Properties, LLC Delaware HCRI Southern Investments I, Inc. Delaware HCRI Tennessee Properties, Inc. Delaware Pennsylvania BCC Properties, Inc. Pennsylvania HCRI Kentucky Properties, LLC Kentucky HCRI Massachusetts Properties II Massachusetts HCRI Satyr Hill, LLC Virginia HCRI Friendship, LLC Virginia HCRI St. Charles, LLC Virginia HCRI Maryland Properties, LLC Maryland HCRI Laurel, LLC Maryland HCRI North Carolina Properties I, Inc. North Carolina HCRI North Carolina Properties III, LP North Carolina HCRI North Carolina Properties II, Inc. North Carolina HCRI Wisconsin Properties, LLC Wisconsin HCRI Mississippi Properties, Inc. Mississippi HCRI Illinois Properties, LLC Delaware HCRI Missouri Properties, LLC Delaware HCRI Surgical Properties, LLC Ohio HCRI Tucson Properties, Inc. Delaware EX-23.1 9 l02861aexv23w1.txt EX-23.1 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Prospectus Supplement dated September 23, 2003 to the Registration Statement (Form S-3 No. 333-107280) and related Prospectus of Health Care REIT, Inc. for the offering of up to 3,200,000 shares of Common Stock, and to the incorporation by reference therein of our report dated January 17, 2003, 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, 2002, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Toledo, Ohio September 19, 2003 EX-99.1 10 l02861aexv99w1.txt EX-99.1 PRESS RELEASE Exhibit 99.1 [HEALTH CARE REIT LOGO] FOR IMMEDIATE RELEASE August 11, 2003 For more information contact: Ray Braun (419) 247-2800 Mike Crabtree (419) 247-2800 Scott Estes (419) 247-2800 HEALTH CARE REIT, INC. CHANGES NET INCOME GUIDANCE TO REFLECT EITF TOPIC D-42 CLARIFICATION; FFO IMPACT SUBJECT TO NAREIT REVIEW NON-CASH, NON-RECURRING CHARGE RESULTS IN NET INCOME GUIDANCE RANGE OF $1.63 TO $1.68 PER SHARE Toledo, Ohio, August 11, 2003...HEALTH CARE REIT, INC. (NYSE/HCN) announced today that it is reducing its 2003 net income guidance as a result of the recent Securities and Exchange Commission (SEC) clarification of Emerging Issues Task Force (EITF) Topic D-42, "The Effect on the Calculation of Earnings per Share for the Redemption or Induced Conversion of Preferred Stock". The company also announced that it will follow the National Association of Real Estate Investment Trusts' (NAREIT) recommendation in determining the impact of the change on FFO. EITF Topic D-42 provides, among other things, that any excess of (1) the fair value of the consideration transferred to the holders of preferred stock redeemed over (2) the carrying amount of the preferred stock should be subtracted from net earnings to determine net income available to common stockholders in the calculation of earnings per share. At the July 31, 2003 meeting of the EITF, the SEC Observer clarified that for purposes of applying EITF Topic D-42, the carrying amount of the preferred stock should be reduced by the issuance costs of the preferred stock, regardless of where in the stockholders' equity section those costs were initially classified upon issuance. On July 15, 2003, the company redeemed all 3 million shares of its 8.875% Series B Cumulative Redeemable Preferred Stock. The costs to issue these securities were recorded as a reduction to paid-in capital and, as was the standard treatment prior to this clarification, were not anticipated to be considered as a reduction to the carrying value of the preferred stock at redemption. However, to implement the clarified accounting pronouncement, the company expects to reduce net income available to common stockholders through a non-cash, non-recurring charge of $2.79 million, or $0.06 per share in the third quarter of 2003. Reflecting this charge, the company is reducing its 2003 net income guidance from a current range of $1.69 to $1.74 per share to a range of $1.63 to $1.68 per share. Whether a commensurate reduction in FFO will be required depends upon a determination by NAREIT, which is expected to be made in early October 2003. If the NAREIT definition of FFO does not change to include an add-back to net income for this non-recurring charge, then the company's 2003 FFO guidance would be reduced from a current range of $2.78 to $2.83 per share to a range of $2.72 to $2.77 per share. Page 1 of 2 The company issued 3 million shares of Series C Cumulative Convertible Preferred Stock in 1999. Through June 30, 2003, approximately 1.75 million of these shares had been converted to common stock. EITF Topic D-42 will not affect the method by which the company has accounted for these conversions, or any subsequent conversions. Health Care REIT, Inc., with headquarters in Toledo, Ohio, is a real estate investment trust that invests in health care facilities, primarily skilled nursing and assisted living facilities. At June 30, 2003, we had investments in 270 health care facilities in 33 states with 47 operators and had total assets of approximately $1.7 billion. For more information on Health Care REIT, Inc., via facsimile at no cost, dial 1-800-PRO-INFO and enter the company code - HCN. More information is available on the Internet at http://www.hcreit.com. This document may contain "forward-looking" statements as defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements concern the possible expansion of our portfolio; the performance of our operators and properties; our ability to enter into agreements with new viable tenants for properties which we take back from financially troubled tenants, if any; our ability to make distributions; our policies and plans regarding investments, financings and other matters; our tax status as a real estate investment trust; our ability to appropriately balance the use of debt and equity; and our ability to access capital markets or other sources of funds. When we use words such as "believe," "expect," "anticipate," or similar expressions, we are making forward-looking statements. Forward-looking statements are not guarantees of future performance and involve risks and uncertainties. Our expected results may not be achieved, and actual results may differ materially from our expectations. This may be a result of various factors, including, but not limited to: the status of the economy; the status of capital markets, including prevailing interest rates; compliance with and changes to regulations and payment policies within the health care industry; changes in financing terms; competition within the health care and senior housing industries; and changes in federal, state and local legislation. Finally, we assume no obligation to update or revise any forward-looking statements or to update the reasons why actual results could differ from those projected in any forward-looking statements. ##### Page 2 of 2 -----END PRIVACY-ENHANCED MESSAGE-----