-----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, SPbSQuQjYc1tmqHECEnSYfsmLfVubTaFMnTb4atF6r1e1+bFpf/cjutzAbjFTsZz Mt/sgBieGnJtvwlJIAb4fw== 0000950152-99-002014.txt : 19990318 0000950152-99-002014.hdr.sgml : 19990318 ACCESSION NUMBER: 0000950152-99-002014 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19990315 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990317 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: SEC FILE NUMBER: 001-08923 FILM NUMBER: 99567402 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 HEALTH CARE REIT, INC. 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): March 15, 1999 HEALTH CARE REIT, INC. (Exact name of registrant as specified in its charter) Delaware 1-8923 34-1096634 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603-1475 (Address of principal executive offices) (Zip Code) (Registrant's telephone number, including area code): 419-247-2800 2 ITEM 5. OTHER EVENTS. In connection with the Company's Registration Statement on Form S-3 (File 333-43177), declared effective January 7, 1998, the Company has entered into an Underwriting Agreement with Legg Mason Wood Walker, Incorporated for an offering of $50,000,000 of Debt Securities of the Company. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 1.1 Form of Underwriting Agreement 4.1 Indenture 4.2 Form of Second Supplemental Indenture 12.1 Statement Regarding Computation of Earnings to Fixed Charges 25.1 Statement of Eligibility of Trustee 3 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. HEALTH CARE REIT, INC. By: /s/ GEORGE L. CHAPMAN --------------------------- George L. Chapman Its: Chairman of the Board, Chief Executive Officer and President Dated: March 17, 1999 4 EXHIBIT INDEX Designation Number Under Item 601 of Exhibit No. Regulation S-K Description - ----------- -------------- ----------- 1.1 1 Form of Underwriting Agreement 4.1(1) 4 Indenture 4.2 4 Form of Third Supplemental Indenture 12.1 12 Statement Regarding Computation of Earnings to Fixed Charges 23.1 23 Consent of Independent Auditors 25.1 25 Statement of Eligibility of Trustee - ----------------- (1) Previously filed as Exhibit 4.1 to the Company's Form 8-K dated April 17, 1997 and incorporated herein by reference. EX-1.1 2 EXHIBIT 1.1 1 Exhibit 1.1 HEALTH CARE REIT, INC. $50,000,000 8.17% Notes due 2006 UNDERWRITING AGREEMENT March 15, 1999 Legg Mason Wood Walker, Incorporated 100 Light Street Baltimore, Maryland 21202 Gentlemen: Health Care REIT, Inc., a Delaware corporation (the "Company"), proposes to sell to Legg Mason Wood Walker, Incorporated (the "Underwriter"), the principal amount of its debt securities identified in Schedule I hereto (the "Securities"), to be issued under the Indenture specified in such schedule (the "Indenture") between the Company and the trustee identified in such schedule (the "Trustee"). As the Underwriter, you have advised the Company (a) that you are authorized to enter into this Agreement and (b) that you are willing to purchase the Securities set forth in Schedule I. In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows: 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants as follows: (i) A registration statement on Form S-3 (File No. 333-43177) with respect to the Securities has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and have been filed with the Commission under the Act. The Company has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectus (meeting the requirements of Rule 430A of the Rules and Regulations) contained therein, the exhibits, financial statements and schedules, as finally amended and revised, and all documents incorporated by reference have heretofore been delivered by the Company to you. Such registration statement, herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below and all information incorporated by reference therein, has been declared effective by the Commission under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement; and the Registration Statement and Prospectus as referred to below comply, or will comply, as the case may be, in all material respects with the Securities Act and the Trust 2 Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Trust Indenture Act"). The form of prospectus first filed by the Company with the Commission pursuant to its Rule 424(b) and Rule 430A, or if no such filing is required, the form of final prospectus included in the Registration Statement at the time the Registration Statement is declared effective, is herein referred to as the "Prospectus." Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a "Preliminary Prospectus." Any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein and any supplements or amendments thereto filed with the Commission as of the date of such Preliminary Prospectus or Prospectus, as the case may be, and in the case of any reference herein to any Preliminary Prospectus or Prospectus, also shall be deemed to include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, and any supplements or amendments thereto, filed with the Commission after the date of the filing of the Prospectus under Rule 424(b) or 430A, and prior to the termination of the offering of the Securities by the Underwriter. Any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus, as the case may be, shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement. (ii) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement; the Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would (a) have a materially adverse effect upon the business of the Company and its subsidiaries, taken as a whole, (b) adversely affect the issuance, validity, or enforceability of the Securities or the enforceability of the Indenture or (c) adversely affect the consummation of the transactions contemplated by this Agreement (each of (a), (b) and (c) above, a "Material Adverse Effect"); except for HCRI Pennsylvania Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green, Inc., HCRI Texas Properties, Ltd., HCRI Nevada Properties, Inc., Health Care REIT International, Inc., HCRI Southern Properties I, Inc., HCN BCC Holdings, Inc., HCR Tennessee Properties, Ltd., HCRI Limited Holdings, Inc., HCRI Texas Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP, Inc., HCN Atlantic L.P., Inc., HCRI Louisiana Properties, L.P. and HCRI Tennessee Properties, L.P., the Company has no subsidiaries. (iii) The Securities have been duly authorized and, when issued, authenticated and delivered pursuant to this Agreement and the Indenture, will be duly and validly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms; the Indenture has been duly authorized and qualified under the Trust Indenture Act and constitutes a valid and binding instrument of the Company enforceable against the Company in accordance with its terms; and the Securities and the Indenture will conform to the statements relating thereto contained in the Prospectus, and any amendments and supplements thereto. 2 3 (iv) The Company's authorized, issued and outstanding capitalization is set forth in the Prospectus; and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable. (v) The Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus relating to the proposed offering of the Securities nor instituted proceedings for that purpose. The Registration Statement and the Prospectus, and any amendments or supplements thereto, contain or will contain all statements which are required to be stated therein by, and in all material respects conform to or will conform to, as the case may be, the requirements of the Act, the Rules and Regulations and the Trust Indenture Act. The documents incorporated by reference in the Prospectus, at the time they were or will be filed with the Commission, conformed or will conform at the time of filing, in all material respects to the requirements of the Exchange Act or the Act, as applicable, and the Rules and Regulations of the Commission thereunder. Neither the Registration Statement nor any amendment thereto, and neither the Prospectus nor any supplement thereto, including any documents incorporated by reference therein, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (a) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and (b) information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, or any documents incorporated by reference therein, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriter, specifically for use in the preparation thereof. (vi) The financial statements of the Company, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly the financial position and the results of operations of the Company at the indicated dates and for the indicated periods. Such financial statements and the related notes and schedules have been prepared in accordance with generally accepted accounting principles, consistently applied throughout the periods involved, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration Statement present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the financial statements presented therein. (vii) There is no action or proceeding pending or, to the knowledge of the Company, threatened against the Company or involving any property of the Company before any court or administrative agency which might reasonably be expected to result in any Material Adverse Effect, except as set forth in the Registration Statement. (viii) The Company has good and marketable title to all of the properties and assets reflected in the financial statements hereinabove described (or as described in the Registration Statement as owned by it), subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such financial statements (or as described in the Registration Statement) or which are not material in amount or which do not interfere with the use made or proposed to be made of the property. The leases, agreements to purchase and mortgages to which the Company is a party, and the guaranties of third parties (a) are the legal, valid and binding obligations of the Company and, to the knowledge of the Company, of all other parties thereto, and the Company knows of no default or defenses currently existing with respect thereto which 3 4 might reasonably be expected to result in any material adverse change in the business or condition (financial or otherwise) of the Company, and (b) conform to the descriptions thereof set forth in the Registration Statement. Each mortgage which the Company holds on the properties described in the Registration Statement constitutes a valid mortgage lien for the benefit of the Company on such property. (ix) The Company has filed all Federal, state and foreign income tax returns which have been required to be filed and has paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith. All tax liabilities have been adequately provided for in the financial statements of the Company. (x) Since the respective dates as of which information is given in the Registration Statement, as it may be amended or supplemented, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, business affairs, management, or business prospects of the Company, whether or not occurring in the ordinary course of business, and the Company has not incurred any material liabilities or obligations and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business and changes and transactions contemplated by the Registration Statement, as it may be amended or supplemented. The Company has no material contingent obligations which are not disclosed in the Registration Statement, as it may be amended or supplemented. (xi) The Company is not (a) in default under any agreement, lease, contract, indenture or other instrument or obligation to which it is a party or by which it or any of its properties is bound or the Company's certificate of incorporation or by-laws, (b) in violation of any statute, or (c) in violation of any order, rule or regulation applicable to the Company or its properties, of any court or of any regulatory body, administrative agency or other governmental body, any of which defaults or violations described in clauses (a) through (c) constitutes, or after any required notice and passage of any applicable grace period would constitute, a Material Adverse Effect. The issue and sale of the Securities and the performance by the Company of all of the provisions of its obligations under the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof and thereof will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which the Company or the Company's properties may be bound, or of the certificate of incorporation or by-laws of the Company or any order, rule or regulation applicable to the Company or the Company's properties or of any court or of any regulatory body, administrative agency or other governmental body. (xii) Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated by this Agreement and the Indenture (except such additional steps as may be required by the National Association of Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the Securities for public offering by the Underwriter under state securities or Blue Sky laws) has been obtained or made by the Company, and is in full force and effect. 4 5 (xiii) The Company holds all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of its businesses and the Company has not received any notice of infringement or of conflict with asserted rights of others with respect to any patents, patent rights, trade names, trademarks or copyrights, which infringement is material to the business of the Company. (xiv) The Company qualifies as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the taxable years ended December 31, 1984 through December 31, 1997 and no transaction or other event has occurred or is contemplated which would prevent the Company from so qualifying for its current taxable year. (xv) To the best of the Company's knowledge, Ernst & Young LLP, who have certified certain of the financial statements and related schedules filed with the Commission as part of, or incorporated by reference in, the Registration Statement, are independent public accountants as required by the Act and the Rules and Regulations. (xvi) To the knowledge of the Company, after inquiry of its officers and directors, there are no affiliations with the NASD among the Company's officers, directors, or principal stockholders, except as set forth in the Registration Statement or as otherwise disclosed in writing to the Underwriter. (xvii) This Agreement and the Indenture have been duly authorized, executed and delivered by the Company. (xviii) Neither the Company nor any of its officers or directors has taken nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M promulgated under the Exchange Act, or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Securities. (xix) Except as disclosed in the Registration Statement, the Company is not a party to any written contract or agreement relating to any purchase of real property or the lending of funds secured by real property which is probable of being consummated and which, if not consummated, might reasonably be expected to result in any Material Adverse Effect. (xx) The Company is not, and immediately after the sale of the Securities pursuant to the terms and conditions of this Agreement will not be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940. 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company agrees to sell to the Underwriter and the Underwriter agrees to purchase from the Company the principal amount of Securities set forth in Schedule I hereto at the purchase price set forth in Schedule I hereto plus accrued interest, if any, from the date specified in Schedule I hereto to the date of payment and delivery. Payment for the Securities to be sold hereunder is to be made in New York Clearing House funds by certified or bank cashier's checks drawn to the order of the Company for the Securities to be sold by it against delivery of the Securities to the Underwriter. Such payment and delivery are to be made at the offices of Legg Mason Wood Walker, Incorporated, 100 Light Street, Baltimore, Maryland 5 6 21202, at 9:00 A.M. local time, on the third business day after the date of this Agreement or at such other time and date not later than three business days thereafter as you and the Company shall agree upon, such time and date being herein referred to as the "Closing Date." (As used herein, "business day" means a day on which the New York Stock Exchange is open for trading and on which banks in New York are open for business and not permitted by law or executive order to be closed). The Securities will be registered in such names and in such denominations as the Underwriter request in writing not later than the second full business day prior to the Closing Date, and will be delivered through book-entry facilities of The Depository Trust Company ("DTC") and made available for inspection by the Underwriter at least one business day prior to the Closing Date at such place as the Underwriter, DTC and the Company shall agree. 3. OFFERING BY THE UNDERWRITER. It is understood that the Underwriter is to make a public offering of the Securities as soon as the Underwriter deems it advisable to do so. The Securities are to be initially offered to the public at the price and upon the terms set forth in the Prospectus. The Underwriter may from time to time thereafter change the public offering price and other selling terms. 4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Underwriter that: (i) The Company will (a) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if the final form of the prospectus is not included in the Registration Statement at the time the Registration Statement is declared effective, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A, if applicable, of the Rules and Regulations, (b) use its best efforts to cause the Registration Statement to remain in effect as to the Securities for so long as the Underwriter may deem necessary in order to complete the distribution of the Securities, (c) not file any amendment to the Registration Statement or supplement to the Prospectus, or document incorporated by reference therein, of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (d) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Securities by the Underwriter; provided, however, that for each such report or definitive proxy or information statement, the Company will not file any such report or definitive proxy or information statement, or amendment thereto, of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations. (ii) The Company will advise the Underwriter promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (a) the issuance of any such stop order preventing or suspending the use of the Prospectus, or (b) any such suspension of the qualification of the Securities for offering or sale in any jurisdiction, and to obtain as soon as possible the lifting of any such stop order, if issued, or such suspension of qualification. 6 7 (iii) The Company will cooperate with the Underwriter in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions as the Underwriter may reasonably have designated and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to subject itself to taxation as doing business in any jurisdiction where it is not now so qualified or required to file such a consent or so subject to taxation. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriter may reasonably request for distribution of the Securities. (iv) The Company will deliver to, or upon the order of, the Underwriter, from time to time, as many copies of any Preliminary Prospectus as the Underwriter may reasonably request. The Company will deliver to, or upon the order of, the Underwriter during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Company will deliver to the Underwriter at or before the Closing Date, six signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriter such number of copies of the Registration Statement, including documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Underwriter may reasonably request. (v) Subject to the provisions of Section 4(i) above, if during the period in which a prospectus is required by law to be delivered by the Underwriter or a dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law. (vi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise the Underwriter in writing when such statement has been so made available. (vii) The Company will, for a period of five years from the Closing Date, deliver to the Underwriter copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. 7 8 (viii) The Company will not, during the period beginning on the date hereof and continuing to and including the business day following the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of or guaranteed by the Company which are substantially similar to the Securities without the Underwriter' prior written consent. 5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees incident to the performance of its obligations under this Agreement and the Indenture, including, without limiting the generality of the foregoing, the following: the fees incident to the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee; the fees payable to rating agencies in connection with the rating of the Securities; accounting fees of the Company; the fees and disbursements of counsel for the Company; the cost of printing and delivering to, or as requested by, the Underwriter, copies of the Registration Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the Indenture, the Blue Sky Survey and any supplements or amendments thereto; the filing fees of the Commission; the filing fees and expenses (including legal fees and disbursements) incident to securing any required review by the NASD of the terms of the sale of the Securities; the fees incident to the listing of the Securities on any stock exchange; and the expenses, including the fees and disbursements of counsel for the Underwriter, incurred in connection with the qualification of the Securities under state securities or Blue Sky laws. Any transfer taxes imposed on the sale of the Securities to the Underwriter will be paid by the Company. The Company shall not, however, be required to pay for any of the Underwriter's expenses (other than those related to qualification under state securities or Blue Sky laws) except that, if this Agreement shall not be consummated because the conditions in Section 7 hereof are not satisfied, or because this Agreement is terminated by the Underwriter pursuant to Section 6 hereof (other than a termination as a result of a failure to satisfy the condition set forth in subparagraph (iv) of Section 6 hereof), or by reason of any failure, refusal or inability on the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of any Underwriter, then the Company shall reimburse the Underwriter for reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing and proposing to market the Securities or in contemplation of performing its obligations hereunder, but the Company shall not in any event be liable to the Underwriter for damages on account of loss of anticipated profits from the sale by them of the Securities. 6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER. The obligation of the Underwriter to purchase the Securities on the Closing Date are subject to the accuracy, as of the Closing Date, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions: (i) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission. (ii) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (a) any intended or potential downgrading or (b) any review or possible change that does not indicate an improvement in the rating, if any, accorded any securities of or guaranteed by the Company by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Act. 8 9 (iii) The Underwriter shall have received on the Closing Date, the opinion of Shumaker, Loop & Kendrick, LLP, counsel for the Company, dated the Closing Date and addressed to the Underwriter to the effect that: (a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus. (b) The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would constitute a Material Adverse Effect. (c) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. (d) The Registration Statement has become effective under the Act and, to such counsel's knowledge no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act. (e) The Registration Statement, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Act, the Exchange Act or the Trust Indenture Act, as applicable, and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial or statistical information included or incorporated by reference therein). (f) The statements contained in the Prospectus under the caption "Description of Notes" and "Description of Debt Securities," insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present in all material respects the information called for with respect to such documents and matters. (g) The statements under the caption "Certain Government Regulations" in the Company's Annual Report on Form 10-K, and any amendments thereto, for the fiscal year ended December 31, 1998 as to matters of law stated therein, have been reviewed by such counsel and constitute fair summaries of the matters described therein which are material to the business or condition (financial or otherwise) of the Company. (h) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed, incorporated by reference or described as required, and such contracts and documents as are summarized in the Registration Statement or the Prospectus are fairly summarized in all material respects. (i) Such counsel knows of no legal proceedings pending or threatened against the Company that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth in the Prospectus. 9 10 (j) The execution and delivery of this Agreement and the Indenture and the consummation of the transactions herein contemplated, including the issuance and sale of the Securities and the performance by the Company of its obligations under the Securities, the Indenture and this Agreement, do not and will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the certificate of incorporation or by-laws of the Company, any material agreement or instrument known to such counsel to which the Company is a party or by which the Company or the Company's properties may be bound or any order known to such counsel or rule or regulation applicable to the Company or the Company's properties of any court or governmental agency or body. (k) This Agreement has been duly authorized, executed and delivered by the Company. (l) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been duly qualified under the Trust Indenture Act. (m) The Securities have been duly authorized and executed by the Company and when authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriter in accordance with the terms of the Agreement, will constitute a valid and binding obligation of the Company entitled to the benefits provided by the Indenture, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). (n) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. (o) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement or the Indenture and the consummation of the transactions contemplated this Agreement or the Indenture (other than as may be required by the NASD or as required by state securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made by the Company, specifying the same. (p) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940. 10 11 In addition, such counsel will provide an opinion, based on such counsel's own review of the Company's certificate of incorporation, stating that the Company was organized and continues to be organized in conformity with the requirements for qualification as a real estate investment trust under subchapter M of the Internal Revenue Code of 1986, as amended (the "Code") and, based on such counsel's review of the Company's federal income tax returns and discussions with management and independent public accountants for the Company, that the Company, taking into account operations for its taxable and fiscal years ended December 31, 1993 through December 31, 1997, satisfied the requirements for qualification and taxation as a real estate investment trust under the Code for such years and that its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code for its taxable and fiscal year ending December 31, 1998. Furthermore, such counsel shall opine that the statements contained under the heading "Taxation" in the Registration Statement and in the Company's Annual Report on Form 10-K, and any amendments, for the fiscal year ended December 31, 1998 are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders. In rendering such opinion, Shumaker, Loop & Kendrick, LLP may rely as to matters governed by the laws of states other than the laws of State of Ohio, the corporate laws of the State of Delaware or Federal laws on local counsel in such jurisdictions, provided that in such case Shumaker, Loop & Kendrick, LLP shall state that they believe that they and the Underwriter are justified in relying on such other counsel and such other counsel shall indicate that the Underwriter may rely on such opinion. As to matters of fact, to the extent they deem proper, such counsel may rely on certificates of officers of the Company and public officials so long as such counsel states that they have no reason to believe that either the Underwriter or they are not justified in relying on such certificates. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Prospectus or any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b), or any of the documents incorporated by reference therein, as of the date of effectiveness of the Registration Statement or, in the case of documents incorporated by reference into the Prospectus after the date of effectiveness of the Registration Statement, as of the respective date when such documents were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Registration Statement and the Prospectus, or any amendment or supplement thereto, or any of the documents incorporated by reference therein, as of the date of effectiveness of the Registration Statement or, in the case of documents incorporated by reference into the Prospectus after the date of effectiveness of the Registration Statement, as of the respective date when such documents were filed with the Commission, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to financial statements, schedules and other financial or statistical information included therein). With respect to such statement, Shumaker, Loop & Kendrick, LLP, may state that their belief is based upon the procedures set forth or incorporated by reference therein, but is without independent check and verification. (iv) The Underwriter shall have received from Calfee, Halter & Griswold LLP, counsel for the Underwriter, an opinion dated the Closing Date, with respect to the organization of the Company, the validity of the Indenture and the Securities, the Registration Statement, the Prospectus and other related matters as the Underwriter reasonably may request and such counsel shall have received such papers and information as they reasonably request to enable them to pass upon such matters. 11 12 (v) The Underwriter shall have received at or prior to the Closing Date from Calfee, Halter & Griswold LLP, a memorandum or summary, in form and substance satisfactory to the Underwriter, with respect to the qualification for offering and sale by the Underwriter of the Securities under the state securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably have designated to the Company. (vi) The Underwriter shall have received on the Closing Date, a signed letter from Ernst & Young LLP, dated the Closing Date, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter, dated March __, 1999, signed by such firm and delivered to the Underwriter by Ernst & Young LLP, that nothing has come to their attention during the period from the date five days prior to the date hereof, to a date not more than five days prior to the Closing Date, which would require any change in its letter dated March __, 1999 if it were required to be dated and delivered on the Closing Date. All such letters shall be in form and substance satisfactory to the Underwriter. (vii) The Underwriter shall have received on the Closing Date, a certificate or certificates of the Chairman of the Board, Chief Executive Officer, and President and the Chief Financial Officer of the Company to the effect that as of the Closing Date, each of them severally represents as follows: (a) The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been taken or are, to his knowledge, contemplated by the Commission. (b) Subsequent to the delivery of this Agreement and prior to the Closing date, there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate an improvement in the rating, if any, accorded any securities of or guaranteed by the Company by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) of the Act. (c) He does not know of any litigation instituted or threatened against the Company of a character required to be disclosed in the Registration Statement which is not so disclosed; he does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed; and the representations and warranties of the Company contained in Section 1 hereof are true and correct as of the Closing Date. (d) He has carefully examined the Registration Statement and the Prospectus and in his opinion, as of the effective date of the Registration Statement, the statements contained in the Registration Statement, including any document incorporated by reference therein, were true and correct, and such Registration Statement and Prospectus, or any document incorporated by reference therein, did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in his opinion, since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such supplement or amendment. 12 13 The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to the Underwriter and to Calfee, Halter & Griswold LLP, counsel for the Underwriter. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriter hereunder may be terminated by the Underwriter by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date. In such event, the Company and the Underwriter shall not be under any obligation to each other (except to the extent provided in Sections 5 and 8 hereof). 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the Company to sell and deliver the portion of the Securities required to be delivered as and when specified in this Agreement are subject to the conditions that at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened. 8. INDEMNIFICATION. (i) The Company agrees to indemnify and hold harmless the Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act against any losses, claims, damages or liabilities to which such Underwriter or such controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or (b) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Underwriter and each such controlling person for any legal or other expenses reasonably incurred by the Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus, or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Underwriter specifically for use in the preparation thereof; and provided further that as to any Preliminary Prospectus this indemnity agreement shall not inure to the benefit of any Underwriter or any person controlling any Underwriter on account of any loss, claim, damage, liability or action arising from the sale of any Securities to any person by such Underwriter if such Underwriter failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Preliminary Prospectus was corrected in the Prospectus, unless such failure resulted from non-compliance by the Company with Section 4(iv) or Section 4(v). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (ii) The Underwriter will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become 13 14 subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that the Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Underwriter specifically for use in the preparation thereof. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have. (iii) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 8, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing. No indemnification provided for in Sections 8(i) or (ii) shall be available to any party who shall fail to give notice as provided in this Section 8(iii) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Sections 8(i) or (ii). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the indemnifying party shall not be entitled to assume the defense of such suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified pursuant to Section 8(ii). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as 14 15 contemplated by the fifth sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent to which the indemnification obligations of the Company hereunder are applicable if (a) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (b) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. (iv) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless to the extent required therein an indemnified party under Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(iii) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Underwriter bear to the total proceeds of the offering (the proceeds received by the Underwriter being equal to the total underwriting discounts and commissions received by the Underwriter), in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriter on the other hand and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriter agree that it would not be just and equitable if contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(iv), (a) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Securities purchased by such Underwriter and (b) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (v) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Prospectus or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of any our having jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party. 15 16 9. NOTICES. All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or telegraphed and confirmed as follows: if to the Underwriter, to Legg Mason Wood Walker, Incorporated, 100 Light Street, Baltimore, Maryland 21202, Attention: David O'Malley; if to the Company, to Health Care REIT, Inc., One SeaGate, Suite 1500, Toledo, Ohio 43603-1475, Attention: George L. Chapman, Chairman of the Board, Chief Executive Officer and President. 10. TERMINATION. This Agreement may be terminated by you by notice to the Company as follows: (i) at any time prior to the earlier of (i) the time the Securities are released by you for sale, or (ii) 11:30 A.M. on the first business day following the date of this Agreement; (ii) at any time prior to the Closing Date if any of the following has occurred: (a) since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business, (b) any outbreak or escalation of hostilities or declaration of war or national emergency after the date hereof or other national or international calamity or crisis or change in economic or political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets of the United States would, in your reasonable judgment, make the offering or delivery of the Securities impracticable or inadvisable, (c) trading in securities on the New York Stock Exchange or the American Stock Exchange shall have been suspended or materially limited (other than limitations on hours or numbers of days of trading) or minimum prices shall have been established for securities on either such Exchange, (d) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects or will materially or adversely affect the business or operations of the Company, (e) declaration of a banking moratorium by either federal or New York State authorities, (f) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States, (g) any litigation or proceeding is pending or threatened against any Underwriter which seeks to enjoin or otherwise restrain, or seeks damages in connection with, or questions the legality or validity of this Agreement or the transactions contemplated hereby, or (h) any downgrading in the rating of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Exchange Act); or (iii) as provided in Section 6 of this Agreement. 11. SUCCESSORS. This Agreement has been and is made solely for the benefit of the Underwriter and the Company and their respective successors, executors, administrators, heirs and assigns, and the officers, directors and controlling persons referred to herein, and no other person will have any right or obligation hereunder. The term "successors" shall not include any purchaser of the Securities merely because of such purchase. 16 17 13. MISCELLANEOUS. The reimbursement, indemnification and contribution agreements contained in this Agreement and the representations, warranties and covenants in this Agreement shall remain in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Underwriter any or controlling person thereof, or by or on behalf of the Company or its directors or officers and (iii) delivery of and payment for the Securities under this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. [The remainder of this page intentionally left blank.] 17 18 If the foregoing letter is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Company and the Underwriter in accordance with its terms. Very truly yours, HEALTH CARE REIT, INC. By: ----------------------------------------- George L. Chapman, Chairman of the Board, Chief Executive Officer and President The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. LEGG MASON WOOD WALKER, INCORPORATED By: ----------------------------- Its: ----------------------------- 18 19
SCHEDULE I ---------- Underwriter: Legg Mason Wood Walker, Incorporated Underwriting Agreement Date: March __, 1999 Registration Statement No.: 333-43177 Title of Securities: 8.17% Notes due 2006 (the "Notes") Aggregate Principle Amount: $50,000,000 Price to Public: 100% of the principal amount of the Notes, plus accrued interest, if any, from the Closing Date Underwriting Discount: 0.50% Purchase Price to Underwriter: 99.5% of the principal amount of the Notes Indenture: Indenture, dated as of April 17, 1997, as amended by the Supplemental Indenture No. 3, between Health Care REIT, Inc. and The Fifth Third Bank Trustee: The Fifth Third Bank Maturity: March 15, 2006 Interest Rate: 8.17% Interest Payment Dates: March 15 September 15 Optional Redemption Provisions: Yes Sinking Fund Provisions: No Closing Date and Time of Delivery: March __, 1999 Closing Location: Legg Mason Wood Walker, Incorporated 100 Light Street Baltimore, Maryland 21202
19 EX-4.2 3 EXHIBIT 4.2 1 Exhibit 4.2 THIRD SUPPLEMENTAL INDENTURE DATED AS OF MARCH 18, 1999 BETWEEN HEALTH CARE REIT, INC. AND FIFTH THIRD BANK ------------------------------------------- HEALTH CARE REIT, INC. Issuer to FIFTH THIRD BANK Trustee --------------------------------------------- Supplemental Indenture No. 3 Dated as of March 18, 1999 --------------------------------------------- $50,000,000 8.17% Notes due 2006 ----------------------------------------------- 2 SUPPLEMENTAL INDENTURE NO. 3, dated as of March 18, 1999 (the "Supplemental Indenture"), between HEALTH CARE REIT, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), and THE FIFTH THIRD BANK, an Ohio banking corporation, duly organized and existing under the laws of the State of Ohio, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has heretofore delivered to the Trustee an Indenture, dated as of April 17, 1997 (the "Senior Indenture"), a form of which has been filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, as an exhibit to the Company's Registration Statement on Form S-3 (Registration No. 33-64877) and incorporated by reference as an exhibit to the Company's Registration Statement on Form S-3 (Registration No. 333-43177) providing for the issuance from time to time of Debt Securities of the Company (the "Securities"). Section 301 of the Senior Indenture provides for various matters with respect to any series of Securities issued under the Senior Indenture to be established in an indenture supplemental to the Senior Indenture. Section 901(7) of the Senior Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Senior Indenture to establish the form or terms of Securities of any series as provided by Sections 201 and 301 of the Senior Indenture. The Board of Directors of the Company has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture. All the conditions and requirements necessary to make this Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed, have been performed and fulfilled. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the series of Securities provided for herein by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows: 1 3 ARTICLE ONE RELATION TO SENIOR INDENTURE; DEFINITIONS SECTION 1.1. Relation to Senior Indenture. This Supplemental Indenture constitutes an integral part of the Senior Indenture. SECTION 1.2. Definitions. For all purposes of this Supplemental Indenture, except as otherwise expressly provided for or unless the context otherwise requires: (1) Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Senior Indenture; and (2) All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in the State of Ohio are authorized or required by law, regulation or executive order to close. "Capital Base" means, at any date, the sum of Tangible Net Worth and Subordinated Debt. "Capital Lease" means at any time any lease of property, real or personal, which, in accordance with GAAP, would at such time be required to be capitalized on a balance sheet of the lessee. "Capitalized Lease Obligations" means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP. "Consolidated Net Tangible Assets" means the aggregate amount of assets (less applicable reserves and other properly deductible items) less (i) all current liabilities and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expenses and other like tangibles of the Company and its consolidated subsidiaries, all as set forth on the most recent balance sheet of the Company and its consolidated subsidiaries prepared in accordance with GAAP. "Corporate Trust Office" means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at 38 Fountain Square Plaza, Cincinnati, Ohio 45263 and, for purposes of the Place of Payment provisions of Sections 305 and 1002 of the Senior Indenture, is located at Chase Bank, Four New York Plaza, Ground Floor/Receiving Window, New York, New York 10004. 2 4 "DTC" means The Depository Trust Company located at 55 Water Street, 49th Floor, New York, New York, 10041-0099. "EBITDA" means for any period, with respect to the Company on a consolidated basis, determined in accordance with GAAP, the sum of net income (or net loss) for such period plus, the sum of all amounts treated as expenses for: (a) interest, (b) depreciation, (c) amortization and (d) all accrued taxes on or measured by income to the extent included in the determination of such net income (or net loss); provided, however, that net income (or net loss) shall be computed without giving effect to extraordinary losses or gains. "GAAP" means generally accepted accounting principles. "Indebtedness" means with respect to any Person, all: (a) liabilities or obligations, direct and contingent, which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet of such Person at the date as of which Indebtedness is to be determined, including, without limitation, contingent liabilities that in accordance with such principles, would be set forth in a specific Dollar amount on the liability side of such balance sheet, and Capitalized Lease Obligations of such Person; (b) liabilities or obligations of others for which such Person is directly or indirectly liable, by way of guaranty (whether by direct guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to purchase or advance or keep in funds or other agreement having the effect of a guaranty) or otherwise; (c) liabilities or obligations secured by Liens on any assets of such Person, whether or not such liabilities or obligations shall have been assumed by it; and (d) liabilities or obligations of such Person, direct or contingent, with respect to letters of credit issued for the account of such Person and bankers acceptances created for such Person. "Interest Coverage" means as of the last day of any fiscal quarter, the quotient, expressed as a percentage (which may be in excess of 100%), determined by dividing EBITDA by Interest Expense; all of the foregoing calculated by reference to the immediately preceding four fiscal quarters of the Company ending on such date of determination. "Interest Expense" means for any period, on a combined basis, the sum of all interest paid or payable (excluding unamortized debt issuance costs) on all items of Indebtedness of the Company outstanding at any time during such period. "Liabilities" means, at any date, the items shown as liabilities on the balance sheet of the Company except any item of deferred income, including capital gains; "Lien" means any mortgage, deed of trust, pledge, security interest, encumbrance, lien, claim or charge of any kind (including any agreement to give any of the foregoing), any conditional sale or other title retention agreement, any lease in the nature of any of the foregoing, and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction. 3 5 "Make-Whole Amount" means, in connection with any optional redemption or accelerated payment of any Notes, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of each such dollar if such redemption or accelerated payment had not been made, determined by discounting, on a semi-annual basis, such principal and interest at the Reinvestment Rate (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount of the Notes being redeemed or paid. "Notes" has the meaning specified in Section 2.1 hereof. "Person" means an individual, partnership, corporation, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields under the respective heading "Week Ending" published in the most recent Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the purpose of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. "Senior Debt" means all Indebtedness other than Subordinated Debt. "Statistical Release" means that statistical release designated "H.15(519)" or any successor publication that is published weekly by the Federal Reserve System and that establishes yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any determination under the Senior Indenture, then such other reasonably comparable index that shall be designated by the Company. "Subordinated Debt" means any unsecured Indebtedness of the Company which is issued or assumed pursuant to, or evidenced by, an indenture or other instrument which contains provisions for the subordination of such other Indebtedness (to which appropriate reference shall be made in the instruments evidencing such other Indebtedness if not contained therein) to the Notes (and, at the option of the Company, if so provided, to other Indebtedness of the Company, either generally or as specifically designated). 4 6 "Tangible Net Worth" means the sum of capital surplus, earned surplus and capital stock, minus deferred charges with GAAP consistently applied. ARTICLE TWO THE SERIES OF NOTES SECTION 2.1. Title of the Securities. There shall be one series of Securities designated the "8.17% Notes due 2006" (the "Notes"). SECTION 2.2. Limitation on Aggregate Principal Amount. The aggregate principal amount of the Notes shall be limited to $50,000,000, and, except as provided in this Section and in Section 306 of the Senior Indenture, the Company shall not execute and the Trustee shall not authenticate or deliver Notes in excess of such aggregate principal amount. Nothing contained in this Section 2.2 or elsewhere in this Supplemental Indenture, or in the Notes, is intended to or shall limit execution by the Company or authentication or delivery by the Trustee of Notes under the circumstances contemplated by Sections 303, 304, 306, 906 and 1304 of the Senior Indenture. SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes. The Notes will bear interest at a rate of 8.17% per annum. Interest will accrue from March 18, 1999 or from the immediately preceding Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on March 15 and September 15 of each year, commencing September 15, 1999 (each, an "Interest Payment Date"), to the Person in whose name such Note is registered at the close of business on March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, a "Regular Record Date"). Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The interest so payable on any Note which is not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the Person in whose name such Note is registered on the relevant Regular Record Date, and such defaulted interest shall instead be payable to the Person in whose name such Note is registered on the Special Record Date or other specified date determined in accordance with the Senior Indenture. If any Interest Payment Date or Maturity falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be. 5 7 The Notes will mature on March 15, 2006. SECTION 2.4. Covenants of the Company. (a) The Company will not pledge or otherwise subject to any Lien, any property or assets of the Company or its subsidiaries unless the Notes are secured by such pledge or Lien equally and ratably with all other obligations secured thereby so long as such obligations shall be so secured; provided, however that such restriction shall not apply to the following: (i) Liens securing obligations which do not in the aggregate at any one time outstanding exceed 10% of Consolidated Net Tangible Assets of the Company and its consolidated subsidiaries; (ii) Pledges or deposits by the Company or its subsidiaries under workers' compensation laws, unemployment insurance laws, social security laws, or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness of the Company or its subsidiaries), or leases to which the Company or any of its subsidiaries is a party, or deposits to secure public or statutory obligations of the Company or its subsidiaries or deposits of cash or United States Government Bonds to secure surety, appeal, performance or other similar bonds to which the Company or any of its subsidiaries is a party, or deposits as security for contested taxes or import duties or for the payment of rent; (iii) Liens imposed by law, such as carriers', warehousemen's, materialmen's and mechanics' liens, or Liens arising out of judgments or awards against the Company or any of its subsidiaries which the Company or such subsidiary at the time shall be currently prosecuting an appeal or proceeding for review; (iv) Liens for taxes not yet subject to penalties for non-payment and Liens for taxes the payment of which is being contested in good faith and by appropriate proceedings; (v) Minor survey exceptions, minor encumbrances, easements or reservations of, or rights of, others for rights of way, highways and railroad crossings, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties; (vi) Liens incidental to the conduct of the business of the Company or any subsidiary or to the ownership of their respective properties that were not incurred in connection with Indebtedness of the Company or such subsidiary, all of which Liens referred to in this clause (vi) do not in the aggregate materially impair the value of the properties to which they relate or materially impair their use in the operation of the business taken as a whole of the Company and its subsidiaries, and as to all of the foregoing referenced in clauses (ii) through (vi), only to the extent arising and continuing in the ordinary course of business; 6 8 (vii) Purchase money Liens on property acquired or held by the Company or its subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of such property; provided, however, that (A) any such Lien attaches concurrently with or within 20 days after the acquisition thereof, (B) such Lien attaches solely to the property so acquired in such transaction, (C) the principal amount of the Indebtedness secured thereby does not exceed 100% of the cost of such property and (D) the aggregate amount of all such Indebtedness on a consolidated basis for the Company and its subsidiaries shall not at any time exceed $1,000,000; (viii) Liens existing on the Company's balance sheet as of December 31, 1996; and (ix) Any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (ii) through (viii) inclusive; provided, however, that the amount of any and all obligations and Indebtedness secured thereby shall not exceed the amount thereof so secured immediately prior to the time of such extension, renewal or replacement and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property). (b) The Company will not create, assume, incur, or otherwise become liable in respect of, any Senior Debt unless the aggregate outstanding principal amount of Senior Debt of the Company will not, at the time of such creation, assumption or incurrance and after giving effect thereto and to any concurrent transactions, exceed the greater of (i) 150% of Capital Base or (ii) 225% of Tangible New Worth. (c) The Company will have or maintain, on a consolidated basis, as of the last day of each of the Company's fiscal quarter, Interest Coverage of not less than 150%. (d) For purposes of this Section 2.4, Debt shall be deemed to be "incurred" by the Company or a Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof. SECTION 2.5. Optional Redemption. (a) The Notes may be redeemed at any time at the option of the Company, in whole or from time to time in part, at a redemption price (the "Redemption Price") equal to the sum of (i) the principal amount of the Notes (or portion thereof) being redeemed plus accrued interest thereon to the redemption date and (ii) the Make-Whole Amount, if any, with respect to the Notes (or portion thereof). (b) If notice has been given pursuant to Section 1104 of the Senior Indenture and funds for the redemption of any Notes (or any portion thereof) called for redemption shall have been made available on the Redemption Date, such Notes (or any portion thereof) will cease to bear interest on the Redemption Date specified in such notice and the only right of the Holders of the Notes will be to receive payment of the Redemption Price. 7 9 (c) The Company will notify the Trustee at least 30 days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of such Notes to be redeemed and the Redemption Date. If less than all of the Notes are to be redeemed, the Trustee shall select, in such manner as it shall deem fair and appropriate, the Notes to be redeemed in whole or in part. SECTION 2.6. Places of Payment. The Places of Payment where the Notes may be presented or surrendered for payment, where the Notes may be surrendered for registration of transfer or exchange and where notices and demands to and upon the Company in respect of the Notes and the Senior Indenture may be served shall be in (i) the Borough of Manhattan, The City of New York, New York, and the office or agency for such purpose shall initially be Chase Bank, Four New York Plaza, Ground Floor/Receiving Window, New York, New York 10004 and (ii) the City of Cincinnati, Ohio, and the office or agency for such purpose shall initially be located at c/o Fifth Third Bank, 38 Fountain Square Plaza, Cincinnati, Ohio 45263. SECTION 2.7. Method of Payment. Payment of the principal of and interest on the Notes will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City of New York (which shall initially be an office or agency of the Trustee), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company, payments of principal and interest on the Notes (other than payments of principal and interest due at Maturity) may be made (a) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (b) by wire transfer to an account maintained by the Person entitled thereto located inside the United States. SECTION 2.8. Currency. Principal and interest on the Notes shall be payable in Dollars. SECTION 2.9. Registered Securities; Global Form. The Notes shall be issuable and transferable in fully registered form as Registered Securities, without coupons. The Notes shall be issued in the form of one or more permanent Global Securities. The depositary for the Notes shall be DTC. The Notes shall not be issuable in definitive form except as provided in Section 305 of the Senior Indenture. SECTION 2.10. Form of Notes. The Notes shall be substantially in the form attached as Exhibit A hereto. 8 10 SECTION 2.11. Registrar and Paying Agent. The Trustee shall initially serve as Registrar and Paying Agent for the Notes. SECTION 2.12. Defeasance. (a) The provisions of Sections 1402 and 1403 of the Senior Indenture, together with the other provisions of Article XIV of the Senior Indenture, shall be applicable to the Notes. The provisions of Section 1403 of the Senior Indenture shall apply to the covenants set forth in Section 2.4 of this Supplemental Indenture and to those covenants specified in Section 1403 of the Senior Indenture. (b) The Company, at its option (i) will be discharged from any and all obligations in respect to the Notes (except for certain obligations to register the transfer or exchange of the Notes, to replace destroyed, stolen, lost or mutilated Notes, and to maintain an office or agency in respect of the Notes and hold moneys for payment in trust) or (ii) will be released from its obligations to comply with the provisions of Section 2.4 hereof, and the occurrence of an Event of Default pursuant to Section 501 of the Senior Indenture shall no longer be an Event of Default if, in either case, the Company irrevocably deposits with the Trustee, in trust, money or United States Government Obligations that through payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all of the principal of (and premium, if any) and any interest on the Notes on the dates such payments are due (which may include one or more Redemption Dates designated by the Company) in accordance with the terms of such Notes. (c) Such a trust may only be established if, among other things, (i) no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default under the Indenture shall have occurred and be continuing on the date of such deposit, (ii) the Company shall have delivered an Opinion of Counsel to the effect that the holders of the Notes of such series will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit or defeasance and will be subject to United Stated Federal income tax in the same manner as if such defeasance had not occurred. In the event the Company omits to comply with its remaining obligations under the Indenture after a defeasance of the Indenture with respect to the Notes and the Notes are declared due and payable because of the occurrence of any undefeased Event of Default, the amount of money and United States Government Obligations on deposit with the Trustee may be insufficient to pay amounts due on the Notes at the time of the acceleration resulting from such Event of Default. However, the Company will remain liable in respect to such payments. 9 11 ARTICLE THREE MISCELLANEOUS PROVISIONS SECTION 3.1. Ratification of Senior Indenture. Except as expressly modified or amended hereby, the Senior Indenture continues in full force and effect and is in all respects confirmed and preserved. SECTION 3.2. Governing Law. This Supplemental Indenture and the Note shall be governed by and construed in accordance with the laws of the State of Delaware. This Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and shall, to the extent applicable, be governed by such provisions. SECTION 3.3. Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. 10 12 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year first written above. HEALTH CARE REIT, INC. By: ---------------------------- EDWARD F. LANGE, JR. Vice President, Chief Financial Officer and Treasurer FIFTH THIRD BANK By: ---------------------------- CHRISTINE M. SCHAUB Vice President 11 13 EXHIBIT A TO SUPPLEMENTAL INDENTURE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. Registered No. PRINCIPAL AMOUNT CUSIP No. 42217K AG 1 $50,000,000 HEALTH CARE REIT, INC. 8.17% NOTE DUE 2006 HEALTH CARE REIT, INC., a corporation duly organized and existing under the laws of the State of Delaware (herein referred to as the "Company," which term shall include any successor corporation under the Senior Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, upon presentation, the principal sum of FIFTY MILLION DOLLARS on March 15, 2006 and to pay interest on the outstanding principal amount thereon from March 18, 1999, or from the immediately preceding Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on March 15 and September 15 in each year, commencing September 15, 1999, at the rate of 8.17% per annum, until the entire principal hereof is paid or made available for payment. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Senior Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest which shall be the March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Securities not more than 15 days and not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Payment of the principal of and interest on this Security will be made at the office or agency maintained for that purpose in the City of New York, New York, or elsewhere as provided in the Indenture, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at 14 the option of the Company payments of principal and interest on the Notes (other than payments of principal and interest due at Maturity) may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account of the Person entitled thereto located inside the United States. Securities of this series are one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 17, 1997, as supplemented by Supplemental Indenture No. 3, dated as of March 18, 1999 (as so supplemented, herein called the "Senior Indenture"), between the Company and Fifth Third Bank (herein called the "Trustee," which term includes any successor trustee under the Senior Indenture), to which Senior Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are authenticated and delivered. This Security is one of the series designated in the first page thereof, limited in aggregate principal amount to $50,000,000. The Senior Indenture and the Supplemental Indenture contain provisions for optional defeasance at any time of the payment and discharge of the entire indebtedness of the Company on this Security and upon compliance by the Company with certain conditions set forth in the Senior Indenture, which provisions apply to this Security. If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Senior Indenture. As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Senior Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any interest on or after the respective due dates expressed herein. The Senior Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series of Securities then Outstanding affected thereby. The Senior Indenture also contains provisions permitting the Holders of 15 specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Senior Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Senior Indenture and no provision of this Security or of the Senior Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Senior Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any Place of Payment where the principal of and interest on this Security are payable duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Senior Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. No recourse under or upon any obligation, covenant or agreement contained in the Senior Indenture or in this Security, or because of any indebtedness evidenced hereby or thereby, shall be had against any promoter, as such, or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of this Security by the Holder thereof and as part of the consideration for the issue of the Securities of this series. 16 All capitalized terms used in this Security which are defined in the Senior Indenture shall have the meanings assigned to them in the Senior Indenture. THE SENIOR INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused "CUSIP" numbers to be printed on the Securities of this series as a convenience to the Holders of such Securities. No representation is made as to the correctness or accuracy of such CUSIP numbers as printed on the Securities, and reliance may be placed only on the other identification numbers printed hereon. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Security shall not be entitled to any benefit under the Senior Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, HEALTH CARE REIT, INC. has caused this instrument to be duly executed under its corporate seal. Dated: March 18, 1999 HEALTH CARE REIT, INC. By: -------------------------- EDWARD F. LANGE, JR. Vice President, Chief Financial Officer and Treasurer Corporate Seal Attest: - -------------------------- Secretary 17 TRUSTEE'S CERTIFICATE OF AUTHENTICATION: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. FIFTH THIRD BANK, as Trustee ------------------------------- CHRISTINE M. SCHAUB, Vice President 18 ================================================================================ ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - ----------------------------------------------------- - ----------------------------------------------------- (Please Print or Typewrite Name and Address including Zip Code of Assignee) the within Security of Health Care REIT, Inc. and hereby does irrevocably constitute and appoint _________________________________________ Attorney to transfer said Security on the books of the within-named Company with full power of substitution in the premises. Dated: _________________ NOTICE: The signature to this assignment must correspond with the name as it appears on the first page of the within Security in every particular, without alteration or enlargement or any change whatever. EX-12.1 4 EXHIBIT 12.1 1 Exhibit 12.1 HEALTH CARE REIT, INC. STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Year Ended December 31 ---------------------- 1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- (In thousands) CONSOLIDATED EARNINGS: Net Income 62,309 46,477 30,676 13,635 24,953 Add: Interest Expense 18,030 15,366 14,635 12,752 9,684 Amortization of Loan Expenses 685 720 808 752 638 Equity earnings in less than 50% subsidiary (375) ------ ------ ------ ------ ------ Consolidated Earnings 80,649 62,563 46,119 27,139 35,275 CONSOLIDATED FIXED CHARGES: Interest Expense 18,030 15,366 14,635 12,752 9,684 Capitalized Interest 7,740 2,305 287 Amortization of Loan Expenses 685 720 808 752 638 ------ ------ ------ ------ ------ Consolidated Fixed Charges 26,455 18,391 15,730 13,504 10,322 ====== ====== ====== ====== ====== Ratio 3.05 3.40 2.93 2.01 3.42
EX-23.1 5 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Prospectus Supplement dated March 15, 1999 to the Registration Statement (Form S-3 No. 333-43177) and related Prospectus of Health Care REIT, Inc. for the registration of $50,000,000 of 8.17% Notes due 2006 and to the incorporation by reference therein of our report dated January 20, 1999, with respect to the consolidated financial statements and schedules of Health Care REIT, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Toledo, Ohio March 15, 1999 EX-25.1 6 EXHIBIT 25.1 1 Exhibit 25.1 FORM T-1 File No. ____ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) FIFTH THIRD BANK - -------------------------------------------------------------------------------- (Exact name of trustee as specified in its charter) Ohio - -------------------------------------------------------------------------------- (Jurisdiction of incorporation or organization if not a national bank) 31-0854433 - -------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 38 Fountain Square Plaza, Cincinnati, Ohio - -------------------------------------------------------------------------------- (Address of principal executive offices) 45263 - -------------------------------------------------------------------------------- (Zip Code) Paul L. Reynolds, 5th and Walnut Streets Cincinnati, Ohio, 45263 (513) 579-5300 - -------------------------------------------------------------------------------- (Name, address and telephone number of agent for service) HEALTH CARE REIT, INC. - -------------------------------------------------------------------------------- (Exact name of obligor as specified in its charter) Delaware - -------------------------------------------------------------------------------- (State or other jurisdiction of incorporation or organization) 34-1096634 - -------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) One SeaGate, Suite 1950, Toledo, Ohio - -------------------------------------------------------------------------------- (Address of principal executive offices) 43604 - -------------------------------------------------------------------------------- (Zip Code) 8.17% Note Due 2006 - -------------------------------------------------------------------------------- (Title of the indenture securities) 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee - (a) Name and address of each examining or supervising authority to which it is subject. Ohio Superintendent of Banks State Office Tower 30 E. Broad Street Columbus, Ohio 43215 Federal Reserve Bank of Cleveland East Sixth Street and Superior Avenue Cleveland, Ohio 44101 Federal Deposit Insurance Corporation, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. None. ITEMS 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 AND 15 ARE NOT APPLICABLE BY VIRTUE OF THE ANSWER TO ITEM 13. ITEM 13. DEFAULTS BY THE OBLIGOR. (a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. None. (b) If the Trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. None. 2 3 ITEM 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this statement of eligibility. (Exhibits identified in parentheses, on file with the Commission, are incorporated herein by reference as exhibits hereto.) (1) A copy of the Certificate of Incorporation of the trustee as now in effect. (2) A copy of the certificate of authority of the trustee to commence business. (Included in Exhibit 1) (3) A copy of the authorization of the trustee to exercise corporate trust powers. (4) A copy of the existing code of regulations of the trustee incorporating amendments to date. (5) A copy of each indenture referred to in Item 4. (6) The consent of the trustee required by Section 321 (b) of the Trust Indenture Act of 1939. (7) A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. (8) A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. (9) Foreign trustees are required to file a consent to service of process of Form F-X 3 4 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, Fifth Third Bank, a corporation organized and existing under the laws of the State of Ohio, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cincinnati and the State of Ohio, on the _____ day of March, 1999. FIFTH THIRD BANK By: /s/ CHRISTINE M. SCHAUB -------------------------------- Christine M. Schaub, Vice President and Trust Officer 4 5 EXHIBIT 1 CERTIFICATE OF INCORPORATION OF THE TRUSTEE AS NOW IN EFFECT CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION OF FIFTH THIRD BANK F.K.A. The Fifth Third Bank George A. Schaefer, Jr., President and Paul L. Reynolds, Assistant Secretary, of the above named Ohio banking corporation do hereby certify that in a writing signed by all the shareholders who would be entitled to notice of a meeting held for that purpose, the following resolution to amend the Articles was adopted: RESOLVED, that the Articles of Incorporation, as amended, of The Fifth Third Bank, (the "Company"), be and the same hereby are amended so that Article First thereof shall henceforth be and read as follows: FIRST: The name of said Corporation shall be "Fifth Third Bank'. IN WITNESS WHEREOF, the above named officers, acting for and on behalf of the corporation, have hereto subscribed their names this 4th day of October 1998. By: /s/ GEORGE A. SCHAEFER, JR. ------------------------------------- George A. Schaefer, Jr., President By: /s/ PAUL L. REYNOLDS ------------------------------------- Paul L. Reynolds, Assistant Secretary Approved this 2nd day of November, 1999. /s/ W. CURTIS STITT - ---------------------------------- W. Curtis Stitt, Superintendent Division of Financial Institutions 5 6 CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION OF THE FIFTH THIRD BANK George A. Schaefer, Jr., President and Phillip C. Long, Secretary to The Fifth Third Bank, an Ohio banking corporation, with its principal office located at Cincinnati, Hamilton County, Ohio, do hereby certify that a duly called meeting of the Board of Directors held on May 18, 1993, at which a quorum was present and at a special meeting of the shareholder on May 18, 1993, the following resolution to amend the Third Amended Articles of Incorporation which adopted by affirmative vote of all the Directors in attendance and by an unanimous vote of the sole shareholder. RESOLVED, that Article FOURTH of the Third Amendment Articles of Incorporation be and is hereby amended in its entirety to read as follows: FOURTH: The maximum number of shares with the corporation is authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par value of Two Thousand Two Hundred Dollars ($2,200.00) per share. IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and Phillip C. Long, Secretary of The Fifth Third Bank, acting for and on behalf of said corporation have hereunto subscribed their names this 18th day of May, 1993. /s/ GEORGE A. SCHAEFER, JR. -------------------------------------- George A. Schaefer, Jr., President Approved this 16th day of June, 1993 /s/ ALLISON M. MEEKS - -------------------------------- Allison M. Meeks, Superintendent /s/ PHILLIP C. LONG -------------------------------------- Phillip C. Long, Secretary 6 7 THIRD AMENDED ARTICLES OF INCORPORATION OF THE FIFTH THIRD BANK FIRST: The name of said Corporation shall be "The Fifth Third Bank". SECOND: The place in Ohio where its principal office is to be located is Cincinnati, Hamilton County, and its principal business there transacted. THIRD: Said Corporation is formed for the purposes of (a) receiving on deposit or in trust, moneys, securities and other valuable property, on such terms as may be agreed, and of doing the business of a savings bank and of a trust company; (b) of disposing of box vaults for safekeeping of valuables by lease or otherwise; (c) of investing and loaning the funds of the company and those received by it on deposit or in trust; (d) of doing a commercial banking business; and, (e) of doing the business of a special plan bank, and in furtherance of said purposes, to exercise all the powers of which may be lawfully exercised by a corporation formed therefore, and to do all things necessary to incident thereto. FOURTH: The maximum number of shares which the corporation is authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par value of One Thousand Nine Hundred Dollars ($1,900.00) per share. FIFTH: These Amended Articles of Incorporation supersede and take the place of the existing Articles of Incorporation. 7 8 EXHIBIT 2 CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS (INCLUDED IN EXHIBIT 1) 8 9 EXHIBIT 3 A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS [See Attached] 9 10 STATE OF OHIO DIVISION OF FINANCIAL INSTITUTIONS This is to certify that Fifth Third Bank, Cincinnati, Ohio, organized under the laws of the State of Ohio has complied with the laws relating to trust companies under Section 1111.04 of the Ohio Revised Code and is qualified to exercise trust powers in Ohio. Witness my hand at Columbus, Ohio, this 1st day of March, 1999. /s/ W. CURTIS STITT ------------------------- W. Curtis Stitt Superintendent Division of Financial Institutions 10 11 EXHIBIT 4 A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE INCORPORATING AMENDMENTS TO DATE [See Attached] 11 12 CODE OF REGULATIONS OF FIFTH THIRD BANK ARTICLE I STOCKHOLDERS SECTION 1. MEETINGS. The annual meeting of the Stockholders shall be held at the principal office of the Company at such hour, as may be fixed in the notice of such meeting, and on such date, not earlier than the second Tuesday of January or later than the third Tuesday of April of each year, as shall be fixed by the Board of Directors and communicated in writing to the Shareholders not later than twenty (20) days prior to such meeting. SECTION 2. QUORUM. Stockholders, whether in person or by lawful proxies, representing a majority in amount of the outstanding stock of the Company, shall constitute a quorum at any stockholders' meeting. If there be less than a majority in amount of such stock at any meeting, the meeting may be adjourned from time to time. ARTICLE II DIRECTORS SECTION 1. NUMBER. The Board of Directors shall be composed of eighteen (18) persons unless this number is changed by: (1) the Shareholders in accordance with the laws of Ohio or (2) the vote of a majority of the Directors in office. The Directors may increase the number to not more than twenty-four (24) persons and may decrease the number to not less than fifteen (15) persons. Any Director's office created by the Directors by reason of an increase in their number may be filled by action of a majority of the Directors in office. SECTION 2. TERM. Directors shall hold office until the expiration of the term for which they were erected, and shall continue in office until their respective successors shall have been duly elected and qualified. SECTION 3. QUALIFICATIONS AND COMPENSATION. No person shall serve as a Director who is not the owner of record of at least Five Hundred ($500.00) Dollars par value of stock of the Company. Each Director shall be entitled to receive such compensation for attendance at meetings of the Board of Directors of Committees thereof as the Board of Directors may, from time to time, fix. SECTION 4. REPLACEMENT OR REMOVAL. Directors may be replaced or removed as provided by Ohio Law, provided that Directors may be removed without cause only by an affirmative vote of not less than two-thirds (2/3) of the outstanding shares of the Company. SECTION 5. VACANCIES. Any vacancy occurring in the Board of Directors may be filled by the Board of Directors until an election to fill such vacancy is had. SECTION 6. QUORUM. A majority of the whole authorized number of Directors, as the same shall be established from time to time in accordance with Section 1 of this Code of Regulations, shall constitute a quorum for a meeting of the Directors, except that a majority of the Directors in office constitute a quorum for the filling of a vacancy or vacancies of the Board. 12 13 SECTION 7. ELECTION OF OFFICERS. The Board of Directors at the first meeting after the election of Directors may elect one of its own number Chairman of the Board and one of its own number Vice Chairman of the Board; and it shall elect one of its own number President. It may also elect one or more vice presidents (one or more of whom may be designated Executive Vice President and/or Senior Vice President and/or Vice President and Trust Officer), a Cashier, a Secretary, and a Treasurer, and it may appoint such other officers as the Board may deem advisable. Any two of said offices may be held by the same person. Officers so elected shall hold office during the term of the Board by whom they are elected, subject to the power of the Board to remove them at its discretion. They shall be bonded in such amount and with such survey or sureties as the Board of Directors shall require. SECTION 8. MEETINGS OF THE BOARD. Regular meetings of the Board of Directors shall be held on the third Tuesday of each month, or at such other times as may be determined by the Board of Directors. Except as otherwise provided by law, any business may be transacted at any regular meeting of the Board of Directors. Special meetings shall be held upon the call of the Chairman of the Board, if one be elected, or by the President, or in their absence, by a Vice President or any three (3) Directors. SECTION 9. NOTICE OF MEETINGS. The Secretary shall give notice of each meeting of the Board of Directors, whether regular or special, to each member of the Board. SECTION 10. COMMITTEES. SECTION 10.1 EXECUTIVE COMMITTEE. The Board of Directors shall appoint any Executive Committee consisting of at least three (3) members, all of whom may be members of the Board of Directors, or at least one (1) of whom shall be a Director, the remainder to be officers of the Bank. Such Executive Committee shall serve until their successors are appointed. A majority of the members of said Committee shall constitute a quorum. The Executive Committee shall conduct the business of the Company and shall have all the powers of the Board of Directors when said Board is not in session, except that of declaring a dividend. The Secretary of the Company shall keep a record of the Committee's proceedings, which, signed by the Chairman of the Committee, shall be presented at the meetings of the Committee and at the meetings of the Board of Directors. SECTION 10.2 OTHER COMMITTEES. The Board of Directors shall appoint a Trust Committee of which the Vice President and Trust Officer and at least three (3) of its members who are not officers of the Company shall be members. The Vice President and Trust Officer shall be Chairman of the Trust Committee. In addition thereto, the Chairman of the Board, Chief Executive Officer, may appoint such additional Committees, by and with the approval of the Board of Directors, as may be deemed desirable or necessary. Each such Committee, so appointed, shall have such powers and perform such duties, not inconsistent with law, as may be delegated to it by the Board of Directors. SECTION 11. INDEMNIFICATION. The Company shall indemnify each Director and each Officer of the Company, and each person employed by the Company who serves at the written request of the President of the Company as a director, trustee, officer, employee or agent of another corporation, domestic or foreign, non-profit or for profit, partnership, joint venture, trust or other 13 14 enterprise, to the full extent permitted by Ohio law. The term "Officer" as used in this Section shall include the Chairman of the Board and the Vice Chairman of the Board if such offices are filled, the President, each Vice President, the Treasurer, the Secretary, the Cashier, the Controller, the Auditor, the Counsel and any other person who is specifically designated as an "Officer" within the operation of this Section by action of the Board of Directors. The Company may indemnify assistant Officers, employees and others by action of the Board of Directors to the extent permitted by Ohio law. ARTICLE III OFFICERS SECTION 1. POWERS AND DUTIES. The Chairman of the Board if the office be filled, otherwise the Vice Chairman of the Board, if the office be filled, otherwise the President shall preside at all meetings of the Stockholders, the Board of Directors, and the supervision and control over the business of the Company and shall serve at the pleasure of the Board of Directors. In the absence or disability of any of the foregoing officers, their respective duties shall be performed by the Chairman of the Board, the Vice Chairman of the Board, the President, or by a Vice President specifically designated by the Board of Directors, in the order named. The Secretary, or in his absence or disability, the Assistant Secretary, shall act, ex officio, as Secretary of all meetings of the Stockholders, the Board of Directors and the Executive Committee. The other officers of the Company shall have such powers and duties as usually and customarily attach to their offices. ARTICLE IV CERTIFICATES OF STOCK SECTION 1. FORM. Certificates for shares of stock shall be signed by the Chairman of the Board, or by the President, or by one of the Vice Presidents, and by the Secretary or Treasurer or by the Cashier or an Assistant Cashier, shall contain such statements as are required by law, and shall otherwise be in such form as the Board of Directors may, from time to time, require. SECTION 2. TRANSFERS. Shares shall be transferable on the books of the Company by the holders thereof in person or by duly authorized attorney upon surrender of the certificates therefor with duly executed assignment endorsed thereon or attached thereto. SECTION 3. CLOSING OF TRANSFER BOOKS. The books for transfer of the stock of the Company shall be closed for at least five (5) days preceding the annual meeting of stockholders, and may be closed by order of the Board of Directors, or Executive Committee, for a like period before any other meeting of the Stockholders. 14 15 ARTICLE V AMENDMENTS These regulations may be changed, and new regulations adopted by the assent thereto in writing of two-thirds (2/3) of the Stockholders of the Company in number an in amount; or by a majority of such Stockholders in number and in amount, at a meeting held for that purpose, notice of which has been given by the President, the Secretary, or any two (2) Directors personally or by written notice, to each Stockholders, and by publication once a week for four (4) consecutive weeks in some newspaper of general circulation in Hamilton County, Ohio, or in such other manner as may then be authorized by the laws of Ohio. 15 16 EXHIBIT 5 A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4 (NOT APPLICABLE) 16 17 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B) OF THE TRUST INDENTURE ACT OF 1939 [See Attached] 17 18 EXHIBIT 6 TO FORM T-1 CONSENT OF TRUSTEE Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939 in connection with the proposed issuance of Debt Securities of Health Care REIT, Inc., Fifth Third Bank hereby consents that reports of examination by Federal, State, Territorial or District Authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. FIFTH THIRD BANK By: /s/ CHRISTINE M. SCHAUB --------------------------- Christine M. Schaub, Vice President and Trust Officer 19 EXHIBIT 7 A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY [See Attached] 20 R E P O R T O F C O N D I T I O N Consolidated Report of Condition of FIFTH THIRD BANK of CINCINNATI, OHIO and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business on December 31, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS Thousands of Dollars ---------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin......................................................... 502,214 Interest-bearing balances................................................. 996 Securities: Held-to-maturity securities................................................... 4,916 Available-for-sale securities................................................. 2,853,814 Federal funds sold and securities purchased .................................. ////////// under agreements to resell ............................................... 325,900 Loans and lease financing receivables: Loans and lease, net of unearned income..........................7,469,628 LESS: Allowance for loan and lease losses..........................106,477 LESS: Allocated transfer risk reserve....................................0 Loans and leases, net of unearned income, allowance, and reserve............................................................... 7,363,151 Trading Assets ............................................................... 8,950 Premises and fixed assets (including capitalized leases)...................... 138,579 Other real estate owned....................................................... 1,030 Investments in unconsolidated subsidiaries and associated companies...................................................... 0 Customers' liability to this bank on acceptances outstanding................................................... 46,686 Intangible assets............................................................. 70,182 Other assets.................................................................. 409,458 Total assets.................................................................. 11,727,876
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LIABILITIES Deposits: In domestic offices.............................................................................. 5,134,343 Noninterest-bearing.....................................................................1,538,081 Interest-bearing........................................................................3,596,262 In foreign offices, Edge and Agreement subsidiaries, and IBFs:........................................................................................ 353,824 Noninterest-bearing.............................................................................0 Interest-bearing..........................................................................353,824 Federal funds purchased and securities sold under agreements to repurchase.................................................................................... 3,742,117 Demand notes issued to the U.S. Treasury............................................................. 2,768 Trading liabilities.................................................................................. 0 Other borrowed money (including mortgage indebtedness and obligations under capitalized leases): .......................................................................................////////// With a remaining maturity of one year or less.................................................... 100,542 With a remaining maturity of more than one year through three years........................... 202,000 With a remaining maturity of more than three years............................................... 0 Not applicable Bank's liability on acceptances executed and outstanding............................................. 47,161 Subordinated notes and debentures.................................................................... 847,752 Other liabilities.................................................................................... 427,687 Total liabilities.................................................................................... 10,858,194 EQUITY CAPITAL Perpetual preferred stock and related surplus........................................................ 0 Common stock......................................................................................... 70,400 Surplus.............................................................................................. 212,048 Undivided profits and capital reserves............................................................... 566,331 Net unrealized holding gains (losses) on available-for-sale securities.................................................................... 20,902 Cumulative foreign currency translation adjustments.................................................. 0 Total equity capital................................................................................. 896,628 Total liabilities and equity capital................................................................. 11,727,876
22 EXHIBIT 8 A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT (NOT APPLICABLE) 23 EXHIBIT 9 FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF PROCESS OF FORM F-X (NOT APPLICABLE) -----END PRIVACY-ENHANCED MESSAGE-----