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):
May 15, 2003
HEALTH CARE REIT, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-8923 34-1096634
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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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
ITEM 5. OTHER EVENTS.
Effective May 15, 2003, the Company and certain of its subsidiaries entered into Amendment No. 1 to Amended and Restated Loan Agreement with Key Corporate Capital Inc., Deutsche Bank Trust Company Americas, Bank of America, N.A., Bank One, N.A., UBS AG, Cayman Islands Branch and Comerica Bank (the "Banks"), KeyBank National Association, as administrative agent for the Banks, Deutsche Bank Securities Inc., as syndication agent, and UBS Warburg LLC, as documentation agent. The loan agreement, as amended, provides for an expansion of the Company's unsecured revolving line of credit from $175 million to $225 million. The line of credit will expire on May 15, 2006; however, the Company has the ability to extend the credit facility for one year if it is in compliance with all covenants.
Effective May 31, 2003, the Company entered into a Credit Agreement with Fifth Third Bank in order to increase its $25 million unsecured line of credit to $30 million. The term of this facility will expire on May 31, 2004.
On June 5, 2003, the Company filed an amendment to its Second Restated Certificate of Incorporation to increase the number of authorized shares of common and preferred stock.
On June 9, 2003, the Company issued a press release that announced its intent to offer additional preferred shares under a newly designated Series D Cumulative Redeemable Preferred Stock. The Company also announced its intent to redeem all outstanding shares of its 8 7/8% Series B Cumulative Redeemable Preferred Stock. The press release is posted on the Company's Web site (www.hcreit.com) under the heading Press Releases. A copy of the press release has been furnished as Exhibit 99.1 to this Current Report.
On June 11, 2003, the Company signed an underwriting agreement for the sale and purchase of 4,000,000 shares of 7 7/8% Series D Cumulative Redeemable Preferred Stock, which agreement has been furnished as Exhibit 1.1 to this Current Report. Also, the Company issued a press release announcing that the Company had priced a public offering of 4,000,000 shares of 7 7/8% Series D Cumulative Redeemable Preferred Stock and entered into the underwriting agreement. The Company also announced that a portion of the proceeds from this offering will be used to redeem all 3,000,000 shares of its 8 7/8% Series B Cumulative Redeemable Preferred Stock. The press release is posted on the Company's Web site and a copy has been furnished as Exhibit 99.2 to this Current Report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.1 Underwriting Agreement
3.1 Certificate of Amendment of Second Restated Certificate of Incorporation of the Company
3.2 Form of Certificate of Designation of 7 7/8% Series D Cumulative Redeemable Preferred Stock (filed with the Commission as Exhibit 2.5 to the Company's Form 8-A filed June 13, 2003, and incorporated herein by reference thereto)
10.1 Amendment No. 1 to Amended and Restated Loan Agreement by and among the Company and certain of its subsidiaries, the banks signatory hereto and KeyBank National Association, as administrative agent for such banks, Deutsche Bank Securities Inc., as syndication agent, and UBS Warburg LLC, as documentation agent, dated May 15, 2003
10.2 Credit Agreement by and between the Company and Fifth Third Bank, dated May 31, 2003
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
23.1 Consent of Independent Auditors
99.1 Press Release dated June 9, 2003
99.2 Press Release dated June 11, 2003
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
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Its: Chairman of the Board and Chief Executive Officer
Dated: June 13, 2003
\ EXHIBIT INDEX
Designation
Number Under
Item 601 of
Exhibit No. Regulation S-K Description
----------- -------------- -----------
1.1 1 Underwriting Agreement
3.1 3 Certificate of Amendment of Second
Restated Certificate of Incorporation
of the Company
3.2 3 Form of Certificate of Designation of
7 7/8% Series D Cumulative Redeemable
Preferred Stock (filed with the
Commission as Exhibit 2.5 to the
Company's Form 8-A filed June 13, 2003,
and incorporated herein by reference
thereto)
10.1 10 Amendment No. 1 to Amended and Restated
Loan Agreement by and among the Company
and certain of its subsidiaries, the
banks signatory hereto and KeyBank
National Association, as administrative
agent for such banks, Deutsche Bank
Securities Inc., as syndication agent,
and UBS Warburg LLC, as documentation
agent, dated May 15, 2003
10.2 10 Credit Agreement by and between the
Company and Fifth Third Bank, dated
May 31, 2003
12.1 12 Statement Regarding Computation of Ratio
of Earnings to Fixed Charges and Ratio
of Earnings to Combined Fixed Charges
and Preferred Stock Dividends
23.1 23 Consent of Independent Auditors
99.1 99 Press Release dated June 9, 2003
99.2 99 Press Release dated June 11, 2003
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Exhibit 1.1
EXECUTION COPY
4,000,000 SHARES
HEALTH CARE REIT, INC.
7 7/8% Series D Cumulative Redeemable Preferred Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
June 11, 2003
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the Several Underwriters
c/o Deutsche Bank Securities Inc.
60 Wall Street, 3rd Floor
New York, NY 10005
Gentlemen:
Health Care REIT, Inc., a Delaware corporation (the "Company"), proposes to sell to the several underwriters (the "Underwriters") named in Schedule I hereto for whom you are acting as representatives (the "Representatives"), an aggregate of 4,000,000 shares (the "Shares") of the Company's 7 7/8% Series D Cumulative Redeemable Preferred Stock, $1.00 par value per share (the "Preferred Stock").
As the Representatives, you have advised the Company (a) that you are authorized to enter into this Agreement and (b) that the Underwriters are willing to purchase the Shares.
In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants as follows:
(i) A registration statement on Form S-3 (File No. 333-73936) with respect to the Shares has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission under the Act. The Company has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of Rule 430A of the Rules and Regulations) contained therein, the exhibits, financial statements and schedules, as finally amended and revised, and all documents incorporated by reference have heretofore been delivered by the Company to you. Such registration statement, herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below and all information
incorporated by reference therein, has been declared effective by the Commission under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. The form of prospectus first filed by the Company with the Commission pursuant to its Rule 424(b) and Rule 430A, or if no such filing is required, the form of final prospectus included in the Registration Statement at the time the Registration Statement is declared effective, is herein referred to as the "Prospectus." Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a "Preliminary Prospectus." Any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein and any supplements or amendments thereto filed with the Commission as of the date of such Preliminary Prospectus or Prospectus, as the case may be, and in the case of any reference herein to any Preliminary Prospectus or Prospectus, also shall be deemed to include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, and any supplements or amendments thereto, filed with the Commission after the date of the filing of the Prospectus under Rule 424(b) or 430A, and prior to the termination of the offering of the Shares by the Underwriters. Any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus, as the case may be, shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference into such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference into the Registration Statement. Any reference to the Prospectus herein shall be deemed to refer to and include the most recent prospectus supplement filed with respect to the Shares and shall also be deemed to include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act.
(ii) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement; the Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would (a) have a materially adverse effect upon the business of the Company and its Subsidiaries, taken as a whole, (b) adversely affect the issuance, validity or enforceability of the Shares or (c) adversely affect the consummation of the transactions contemplated by this Agreement (each of (a), (b) and (c) above, a "Material Adverse Effect"); except for HCRI Pennsylvania Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green, Inc., HCRI Nevada Properties, Inc., Health Care REIT International, Inc., HCRI Southern Investments I, Inc., HCN BCC Holdings, Inc., HCRI Tennessee Properties, Inc., HCRI Limited Holdings, Inc., HCRI Texas Properties, Ltd., Pennsylvania BCC Properties, Inc., HCN Atlantic GP, Inc., HCN Atlantic LP, Inc., HCRI Louisiana Properties, L.P., HCRI North Carolina Properties, LLC, HCRI Massachusetts Properties, Inc., HCRI Massachusetts Properties Trust, HCRI Indiana Properties, Inc., HCRI Indiana Properties, LLC, HCRI Holdings Trust, HCRI Maryland Properties LLC, HCRI Satyr Hill, LLC, HCRI Friendship, LLC, HCRI St. Charles, LLC, HCRI Massachusetts Properties Trust II, HCRI Beachwood, Inc., HCRI Broadview, Inc., HCRI Westlake, Inc., HCRI Westmoreland, Inc., HCRI Wisconsin Properties, LLC, HCRI North Carolina Properties I, Inc., HCRI North Carolina Properties II, Inc., HCRI North Carolina Properties III, Limited Partnership, HCRI Kentucky Properties, LLC, HCRI Laurel, LLC, HCRI Mississippi Properties, Inc., HCRI Illinois Properties, LLC, HCRI Missouri Properties, LLC, HCRI Surgical Properties, LLC and HCRI Tucson Properties, Inc., the Company has no Subsidiaries.
(iii) The outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and are duly listed on the New York Stock Exchange; the Shares to be issued and sold by the Company have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully-paid and non-assessable; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof.
(iv) The shares of authorized capital stock of the Company, including the Shares, conform with the statements concerning them in the Registration Statement and the Prospectus.
(v) The Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that purpose. 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 and the Rules and Regulations. The documents incorporated by reference in the Prospectus, at the time they were or will be filed with the Commission, 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, 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 not misleading; 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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, or any documents incorporated by reference therein, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Underwriters, specifically for use in the preparation thereof.
(vi) The financial statements of the Company, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly the financial position and the results of operations of the Company at the indicated dates and for the indicated periods. Such financial statements and the related notes and schedules have been prepared in accordance with generally accepted accounting principles, consistently applied throughout the periods involved, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration Statement present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the financial statements presented therein.
(vii) There is no action or proceeding pending or, to the knowledge of the Company, threatened against the Company or involving any property of the Company before any court or administrative agency which might reasonably be expected to result in any Material Adverse Effect, except as set forth in the Registration Statement.
(viii) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described (or as described in the Registration Statement as owned by
it), subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount or which do not interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages
to which the Company is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the Company and, to
the knowledge of the Company, of all other parties thereto, and the
Company knows of no default or defenses currently existing with respect
thereto which might reasonably be expected to result in any Material
Adverse Effect, and (b) conform to the descriptions thereof set forth
in the Registration Statement. Each mortgage which the Company holds on
the properties described in the Registration Statement constitutes a
valid mortgage lien for the benefit of the Company on such property.
(ix) The Company has filed all Federal, state and foreign income tax returns which have been required to be filed and has paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith. All tax liabilities have been adequately provided for in the financial statements of the Company.
(x) Since the respective dates as of which information is given in the Registration Statement, as it may be amended or supplemented, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, business affairs, management, or business prospects of the Company, whether or not occurring in the ordinary course of business, and the Company has not incurred any material liabilities or obligations and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business and changes and transactions contemplated by the Registration Statement, as it may be amended or supplemented. The Company has no material contingent obligations which are not disclosed in the Registration Statement, as it may be amended or supplemented.
(xi) The Company is not (a) in default under any agreement, lease, contract, indenture or other instrument or obligation to which it is a party or by which it or any of its properties is bound or the Company's certificate of incorporation or by-laws, (b) in violation of any statute, or (c) in violation of any order, rule or regulation applicable to the Company or its properties, of any court or of any regulatory body, administrative agency or other governmental body, any of which defaults or violations described in clauses (a) through (c) will have, or after any required notice and passage of any applicable grace period would have, a Material Adverse Effect. The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which the Company or the Company's properties may be bound, or of the certificate of incorporation or by-laws of the Company or any order, rule or regulation applicable to the Company or the Company's properties or of any court or of any regulatory body, administrative agency or other governmental body.
(xii) Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions herein contemplated (except for the filing a supplement to the Prospectus relating to
the Shares or such additional steps as may be required by the National Association of Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the Shares for public offering by the Underwriters under state securities or Blue Sky laws) has been obtained or made by the Company, and is in full force and effect.
(xiii) The Company holds all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of its businesses and the Company has not received any notice of infringement or of conflict with asserted rights of others with respect to any patents, patent rights, trade names, trademarks or copyrights, which infringement is material to the business of the Company.
(xiv) The Company qualifies as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, has so qualified for the taxable years ended December 31, 1984 through December 31, 2002 and no transaction or other event has occurred or is contemplated which would prevent the Company from so qualifying for its current taxable year.
(xv) To the best of the Company's knowledge, Ernst & Young LLP, who have certified certain of the financial statements and related schedules filed with the Commission as part of, or incorporated by reference in, the Registration Statement, are independent public accountants as required by the Act and the Rules and Regulations.
(xvi) To the knowledge of the Company, after inquiry of its officers and directors, there are no affiliations with the NASD among the Company's officers, directors, or principal stockholders, except as set forth in the Registration Statement or as otherwise disclosed in writing to the Underwriters.
(xvii) This Agreement has been duly authorized, executed and delivered by the Company.
(xviii) Neither the Company nor any of its officers or directors has taken nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M promulgated under the Exchange Act, or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Company's Preferred Stock. The Company acknowledges that the Underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the Preferred Stock, including stabilizing bids, syndicate covering transactions and the imposition of penalty bids.
(xix) The Company is not, and immediately after the sale of the Shares pursuant to the terms and conditions of this Agreement will not be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the representations, warranties and covenants herein contained, and subject to the conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree to purchase, at a price of $24.2125 per share, the Shares.
Payment for the Shares to be sold hereunder is to be made in New York Clearing House funds by federal funds wire transfer or by certified or bank cashier's checks drawn to the order of the Company for the Shares to be sold by it against delivery of certificates therefor to the Representatives.
Such payment and delivery are to be made at the offices of Deutsche Bank Securities Inc., 60 Wall Street, 3rd Floor, New York, New York, at 10:00 a.m. New York time, on July 9, 2003 or at such other time and date not later than July 9, 2003 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 certificates for the Shares will be delivered by Mellon Investor Services L.L.C. (the "Transfer Agent") in such denominations and in such registrations as the Representatives request in writing not later than the second full business day prior to the Closing Date, and will be delivered through book entry facilities of The Depository Trust Company ("DTC") and made available for inspection by the Representatives at least one business day prior to the Closing Date at such place as the Representatives, DTC and the Company shall agree.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several Underwriters are to make a public offering of the Shares as soon as the Representatives deem it advisable to do so. The Shares are to be initially offered to the public at the public offering price and upon the terms set forth in the Prospectus. The Representatives may from time to time thereafter change the public offering price and other selling terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations, if the final form of the prospectus is not included in the Registration Statement at the time the Registration Statement is declared effective, a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A, if applicable, of the Rules and Regulations, (b) use its best efforts to cause the Registration Statement to remain in effect as to the Shares for so long as the Representatives may deem necessary in order to complete the distribution of the Shares, (c) not file any amendment to the Registration Statement or supplement to the Prospectus, or document incorporated by reference therein, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations for so long as the Representatives may deem necessary in order to complete the distribution of the Shares and (d) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters; provided, however, that for each such report or definitive proxy or information statement, the Company will not file any such report or definitive proxy or information statement, or amendment thereto, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose for so long as the Representatives may deem necessary in order to complete the distribution of the Shares, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, and the Company will use its best efforts to prevent (a) the issuance of any such stop order preventing or suspending the use of the Prospectus, or (b) any such suspension of the qualification of the Shares for offering or sale in any jurisdiction, and to
obtain as soon as possible the lifting of any such stop order, if issued, or such suspension of qualification.
(iii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, one signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, including documents incorporated by reference therein, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(iv) Subject to the provisions of Section 4(i) above, if during the period in which a prospectus is required by law to be delivered by an Underwriter or a dealer any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (a) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (b) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law.
(v) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to securityholders as soon as practicable an earnings statement in conformity with Rule 158 under the Act for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(vi) The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(vii) Prior to the Closing Date, the Company will use its best efforts to duly and validly authorize, by all necessary corporate action, the resolutions creating the Shares and designating the rights, preferences, restrictions, qualifications and limitations of the Shares (the "Designating Resolutions").
(viii) The Company will use its best efforts to list the Shares on the New York Stock Exchange.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and
fees incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the Underwriter, copies of the Registration Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the applicable listing agreement for the New York Stock Exchange; the filing fees of the Commission; the filing fees and expenses (including legal fees and disbursements) incident to securing any required review by the NASD of the terms of the sale of the Shares; the fees incident to the listing agreement for the New York Stock Exchange. Any transfer taxes imposed on the sale of the Shares to the several Underwriters will be paid by the Company. The Company shall not, however, be required to pay for any of the Underwriters' expenses except that, if this Agreement shall not be consummated because the conditions in Section 7 hereof are not satisfied, or because this Agreement is terminated by the Representatives pursuant to Section 6 hereof, or this Agreement is terminated pursuant to Section 10(i)(a) hereof, or by reason of any failure, refusal or inability on the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of any Underwriter, then the Company shall reimburse the several Underwriters for reasonable out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing and proposing to market the Shares or in contemplation of performing its obligations hereunder, but the Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits from the sale by it of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations of the Underwriters to purchase the Shares 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) The certificate, setting forth a copy of the Designating Resolutions, shall have been executed on behalf of the Company, shall have been filed with the Secretary of State of the State of Delaware and shall have become effective.
(iii) The Representatives 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 Representatives, as representatives of the several Underwriters, to the effect that:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(b) The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the failure to qualify would have a Material Adverse Effect.
(c) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus or a referenced amendment or supplement thereto; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; all of the Shares conform in all material respects to the description thereof contained in the Prospectus; the certificates
for the Shares are in due and proper form; the Shares to be sold by the Company pursuant to this Agreement have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement; and no preemptive or similar rights of stockholders exist with respect to any of the Shares or the issue and sale thereof.
(d) The Registration Statement has become effective under the Act and, to such counsel's knowledge no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act.
(e) The Designating Resolutions have been approved and adopted by all necessary corporate action on behalf of the Company; a certificate setting forth a copy of the Designating Resolutions has been duly executed on behalf of the Company, has been duly filed with the Secretary of State of the State of Delaware and has become effective. No other filing, consent, approval, authorization, order, license, certificate, permit, registration, designation or filing with any court or other governmental agency or body is required for the valid authorization, delivery and sale of the Shares under this Agreement (except for the filing of a supplement to the Prospectus relating to the Shares and such consents, approvals, authorization, registrations or qualification as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters).
(f) The Registration Statement, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and Rules and Regulations (except that such counsel need express no opinion as to the financial statements, schedules and other financial or statistical information included or incorporated by reference therein).
(g) The statements under the caption "Description of Series D Preferred Stock" in the Registration Statement on Form 8-A, as amended, which is incorporated by reference into the Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present in all material respects the information called for with respect to such documents and matters.
(h) The statements under the caption "Certain Government Regulations" in the Company's Annual Report on Form 10-K, and any amendments thereto, for the fiscal year ended December 31, 2002 as to matters of law stated therein, have been reviewed by such counsel and constitute fair summaries of the matters described therein which are material to the business or condition (financial or otherwise) of the Company.
(i) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus or any amendment or supplement thereto which are not so filed, incorporated by reference or described as required, and such contracts and documents as are summarized in the Registration Statement or the Prospectus or any amendment or supplement thereto are fairly summarized in all material respects.
(j) Such counsel knows of no material legal proceedings pending or threatened against the Company except as set forth in the Prospectus or any amendment or supplement thereto.
(k) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the certificate of incorporation or by-laws of the Company, any material agreement or instrument known to such counsel to which the Company is a party or by which the Company or the Company's properties may be bound or any order known to such counsel or rule or regulation applicable to the Company or the Company's properties of any court or governmental agency or body.
(l) This Agreement has been duly authorized, executed and delivered by the Company.
(m) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated (other than (i) the filing of a supplement to the Prospectus with the Commission, and (ii) as may be required by the NASD or as required by state securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made by the Company, specifying the same.
(n) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940.
In addition, either such counsel or Arnold & Porter, special tax counsel to the Company, will provide an opinion, based on such counsel's own review of the Company's certificate of incorporation, stating that the Company was organized and continues to be organized in conformity with the requirements for qualification as a real estate investment trust under subchapter M of the Internal Revenue Code of 1986, as amended, (the "Code") and, based on such counsel's review of the Company's federal income tax returns and discussions with management and independent public accountants for the Company, that the Company, taking into account operations for its taxable and fiscal years ended December 31, 1999 through December 31, 2002, satisfied the requirements for qualification and taxation as a real estate investment trust under the Code for such years and that its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code for its taxable and fiscal year ending December 31, 2003. Furthermore, such counsel shall opine that the statements contained under the headings "Additional U.S. Federal Income Tax Considerations" and "REIT Qualification" in the Registration Statement or Prospectus and under the heading "Taxation" in the Company's Annual Report on Form 10-K, and any amendments, for the fiscal year ended December 31, 2002 are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders.
In rendering such opinion, such counsel may rely as to matters governed by the laws of states other than the laws of State of Ohio, the corporate laws of the State of Delaware or Federal laws on local counsel in such jurisdictions, provided that in such case such counsel shall state that they believe that they and the Underwriters are justified in relying on such
other counsel and such other counsel shall indicate that the
Underwriters may rely on such opinion. As to matters of fact, to the
extent they deem proper, such counsel may rely on certificates of
officers of the Company and public officials so long as such counsel
states that they have no reason to believe that either the
Representatives or they are not justified in relying on such
certificates. In addition to the matters set forth above, the opinion
of Shumaker, Loop & Kendrick, LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel which
leads them to believe that (a) the Registration Statement or any
amendment thereto, as of the time it became effective under the Act, or
any of the documents incorporated by reference therein, as of the date
of effectiveness of the Registration Statement or, in the case of
documents incorporated by reference into the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective
date when such documents were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (b) the Prospectus or any supplement
thereto, on the date it was filed pursuant to Rule 424(b), contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (y) the
Registration Statement or any amendment thereto, or any of the
documents incorporated by reference therein, as of the date of
effectiveness of the Registration Statement or, in the case of
documents incorporated by reference into the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective
date when such documents were filed with the Commission, or as of the
Closing Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading (except that such counsel
need express no view as to financial statements, schedules and other
financial information included therein), and (z) the Prospectus or any
supplement thereto, as of the date it was filed pursuant to Rule
424(b), or as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (except that such counsel need express
no view as to financial statements, schedules and other financial
information included therein). With respect to such statement,
Shumaker, Loop & Kendrick, LLP, may state that this statement is based
upon the procedures set forth or incorporated by reference therein, but
is without independent check and verification.
(iv) The Representatives shall have received from Calfee, Halter & Griswold LLP, counsel for the Underwriters, an opinion dated the Closing Date with respect to the organization of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as the Representatives reasonably may request and such counsel shall have received such papers and information as they reasonably request to enable them to pass upon such matters.
(v) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter or
letters, in form and substance satisfactory to the Representatives,
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(vi) With respect to the letter or letters of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Representatives a letter (the "bring-down letter") of such accountants, dated the Closing Date, (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(vii) The Representatives shall have received on the Closing Date, a certificate or certificates of the Chairman of the Board and Chief Executive Officer and the President and Chief Financial Officer of the Company to the effect that as of the Closing Date, each of them severally represents as follows:
(a) The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for such purpose have been taken or are, to his knowledge, contemplated by the Commission.
(b) He does not know of any litigation instituted or threatened against the Company of a character required to be disclosed in the Registration Statement which is not so disclosed; he does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed; and the representations and warranties of the Company contained in Section 1 hereof are true and correct as of the Closing Date.
(c) He has carefully examined the Registration Statement and the Prospectus and in his opinion, as of the effective date of the Registration Statement, the statements contained in the Registration Statement, including any document incorporated by reference therein, were true and correct, and such Registration Statement and Prospectus, or any document incorporated by reference therein, did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in his opinion, since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement to or an amendment of the Prospectus which has not been so set forth in such supplement or amendment.
(viii) The Shares to be sold by the Company as of the Closing Date, shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to the Representatives and to Calfee, Halter & Griswold LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in
writing or by telegram at or prior to the Closing Date. In such event, the Company and the Underwriters shall not be under any obligation to each other (except to the extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the Company to sell and deliver the portion of the Shares required to be delivered as and when specified in this Agreement are subject to the conditions that at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its officer and directors, and each person, if any, who controls any Underwriter within the meaning of the Act against any losses, claims, damages or liabilities to which such Underwriter or such controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, (b) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, or (c) any act or failure to act, or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and will reimburse each such Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus, or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Representatives specifically for use in the preparation thereof; and provided further that as to any Preliminary Prospectus this indemnity agreement shall not inure to the benefit of any Underwriter, its officers and directors, or any person controlling the Underwriter on account of any loss, claim, damage, liability or action arising from the sale of any Shares to any person by that Underwriter if that Underwriter failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Preliminary Prospectus was corrected in the Prospectus, unless such failure resulted from non-compliance by the Company with Sections 4(iii), 4(iv) or 4(v). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(ii) Each Underwriter severally and jointly will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which they were made; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made or incorporated by reference in the Registration Statement, any Preliminary Prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or through the Representatives specifically for use in the preparation thereof. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have.
(iii) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 8, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing. No indemnification provided for in Sections 8(i) or (ii) shall be available to any party who shall fail to give notice as provided in this Section 8(iii) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Sections 8(i) or (ii). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the indemnifying party shall not be entitled to assume the defense of such suit notwithstanding its obligation to bear the fees and expenses of such counsel. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties and one local counsel. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 8(i) and by the Company in the case of parties indemnified pursuant to Section 8(ii). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the fifth sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent to which the indemnification obligations of the Company hereunder are applicable if (a) such settlement is entered into more than 60 days after receipt by such indemnifying party of
the aforesaid request and (b) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
(iv) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless to the extent required therein an indemnified party under Sections 8(i) or (ii) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Underwriters from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(iii) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Underwriters in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Underwriters shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Underwriters bear to the total proceeds of the offering (the proceeds received by the Underwriters being equal to the total underwriting discounts and commissions received by the Underwriters), in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(iv) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(iv), (a) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Shares purchased by such Underwriter and (b) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this Section 8(iv) to contribute are several in proportion to their respective underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Prospectus or any supplement or amendment thereto, each party against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party.
9. NOTICES. All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or telegraphed and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc., 60 Wall Street, 3rd Floor, New York, New York, 10005, Attention: Carlos DelCristo; if to the Company, to Health Care REIT, Inc., One SeaGate, Suite 1500, Toledo, Ohio 43603-1475, Attention: George L. Chapman, Chairman of the Board and Chief Executive Officer.
10. TERMINATION. This Agreement may be terminated by you by notice to the Company as follows:
(i) at any time prior to the Closing Date if any of the following has occurred: (a) since the date as of which information is given in the Prospectus, any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business, (b) any outbreak or escalation of hostilities or declaration of war or national emergency after the date hereof or other national or international calamity or crisis or change in economic or political conditions if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial markets of the United States would, in your judgment, make the offering or delivery of the Shares impracticable or inadvisable, (c) trading in securities generally or in the Company's securities on the New York Stock Exchange or the American Stock Exchange shall have been suspended or materially limited (other than limitations on hours or numbers of days of trading) or minimum prices shall have been established for securities on either such Exchange, (d) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects or will materially or adversely affect the business or operations of the Company, (e) declaration of a banking moratorium by either federal or New York State authorities or material disruption in securities settlement or clearance services in the United States, (f) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States, or (g) any litigation or proceeding is pending or threatened against any Underwriter which seeks to enjoin or otherwise restrain, or seeks damages in connection with, or questions the legality or validity of this Agreement or the transactions contemplated hereby; or
(ii) as provided in Section 6 of this Agreement.
11. DEFAULT BY UNDERWRITERS. If, at the Closing, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is ten percent or less of the aggregate principal amount of Shares to be purchased on such date, the other Underwriters may make arrangements satisfactory to the Representatives for the purchase of such Shares by other persons (who may include one or more of the non-defaulting Underwriters, including the Representatives), but if no such arrangements are made by the Closing Date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Shares set forth opposite their respective names in Schedule I hereto bears to the aggregate principal amount of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate principal amount of Shares with respect to which such default occurs is more than ten percent of the aggregate principal amount of Shares to be purchased, and arrangements satisfactory to the Representatives and the Company
for the purchase of such Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11. Any action taken under this Section 11 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the benefit of the Underwriters and the Company and their respective successors, executors, administrators, heirs and assigns, and the officers, directors and controlling persons referred to herein, and no other person will have any right or obligation hereunder. The term "successors" shall not include any purchaser of the Shares merely because of such purchase.
13. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (iii) delivery of and payment for
the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
If the foregoing letter is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Company and the Underwriters in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By: /s/ Raymond W. Braun
-------------------------------
Raymond W. Braun, President and
Chief Financial Officer
|
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
UBS SECURITIES LLC
As Representatives of the Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Nigel Cree
-------------------------------------------------
Name: Nigel Cree, Managing Director
-----------------------------------------------
By: /s/ Eric Dobi
-------------------------------------------------
Name: Eric Dobi, Vice President
-------------------------------------------------
|
By: UBS SECURITIES LLC
By: /s/ Christopher Forshner
-------------------------------------------------
Name: Christopher Forshner, Executive Director
-------------------------------------------------
Debt Capital Markets
-------------------------------------------------
By: /s/ Ryan Donovan
-------------------------------------------------
Name: Ryan Donovan, Associate Director
-----------------------------------------------
|
SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF SHARES TO
UNDERWRITER BE PURCHASED
----------- ------------
Deutsche Bank Securities Inc.......................................... 554,672
UBS Securities LLC.................................................... 554,672
Legg Mason Wood Walker, Incorporated.................................. 554,672
McDonald Investments Inc., a KeyCorp Company.......................... 554,672
Raymond James & Associates, Inc....................................... 554,672
A.G. Edwards & Sons, Inc.............................................. 400,000
Lehman Brothers Inc................................................... 400,000
Advest, Inc........................................................... 26,665
BB&T Capital Markets, a division of Scott & Stringfellow, Inc......... 26,665
B.C. Ziegler & Co..................................................... 26,665
C.L. King & Associates, Inc........................................... 26,665
D.A. Davidson & Co.................................................... 26,665
Doley Securities, Inc................................................. 26,665
Fahenstock & Co. Inc.................................................. 26,665
Ferris, Baker Watts Incorporated...................................... 26,665
Janney Montgomery Scott LLC........................................... 26,665
J.P. Morgan Securities Inc............................................ 26,665
Morgan Keegan & Company, Inc.......................................... 26,665
Quick & Reilly, Inc................................................... 26,665
RBC Dain Rauscher Inc................................................. 26,665
Stifel, Nicolaus & Company, Incorporated.............................. 26,665
U.S. Bancorp Piper Jaffray Inc........................................ 26,665
Wells Fargo Securities, LLC........................................... 26,665
Total........................................................ 4,000,000
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Exhibit 3.1
CERTIFICATE OF AMENDMENT OF
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
HEALTH CARE REIT, INC.
Health Care REIT, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of Board of Directors of the Corporation resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring the amendment to be advisable and calling for the proposed amendment to be submitted for the approval of the Corporation's shareholders at the annual meeting of shareholders. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that Section 4 of the Second Restated Certificate of Incorporation shall be amended to read as follows:
The number of shares that the Corporation is authorized to issue and have outstanding is 150,000,000, consisting of 125,000,000 shares of common stock with par value of $1.00 per share (hereinafter referred to as the "Common Stock"), and 25,000,000 shares of preferred stock with par value of $1.00 per share (hereinafter referred to as the "Preferred Stock"), which Preferred Stock may be issued in one or more series and shall have the terms and conditions specified in a resolution or resolutions to be adopted by the Board of Directors of the Corporation.
SECOND: That thereafter, the annual meeting of the stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by Erin C. Ibele, Vice President and Corporate Secretary and an authorized officer of the Corporation, this 5th of June, 2003.
By: /s/ Erin C. Ibele
-------------------------------
Erin C. Ibele
Vice President and
Corporate Secretary
|
Exhibit 10.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND CERTAIN OF ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT FOR SUCH BANKS,
DEUTSCHE BANK SECURITIES INC.,
AS SYNDICATION AGENT
AND
UBS WARBURG LLC,
AS DOCUMENTATION AGENT
MAY 15, 2003
KEYBANK NATIONAL ASSOCIATION
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT (this "AMENDMENT NO. 1"), made as of the 15th day of May, 2003, by and among:
HEALTH CARE REIT, INC., a Delaware corporation, and each of the other entities listed on Exhibit 1 annexed hereto (individually, a "BORROWER" and collectively, THE "BORROWERS");
The Banks that have executed the signature pages hereto (individually, a "BANK" and, collectively, the "BANKS"); and
KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Banks (in such capacity, together with its successors in such capacity, the "AGENT");
W I T N E S S E T H:
WHEREAS:
(A) The "Original Borrowers" set forth on Exhibit 1 annexed hereto (the "ORIGINAL BORROWERS"), the Agent, Deutsche Bank Securities Inc., as Syndication Agent, UBS Warburg LLC, as Documentation Agent and the banks signatory thereto entered into a certain Amended and Restated Loan Agreement dated August 23, 2002 (the "ORIGINAL LOAN AGREEMENT"; the Original Loan Agreement, as amended hereby, and as it may hereafter be further amended, modified or supplemented, is hereinafter referred to as the "LOAN AGREEMENT");
(B) Pursuant to subsection 7.8(b) of the Original Loan Agreement, HCRI is required to cause each newly-created Subsidiary to become a party to the Loan Agreement and in connection therewith, the Original Borrowers desire that each such newly-created Subsidiary listed on Exhibit 1 under the caption "ADDITIONAL BORROWERS" be added as a "Borrower" under the Loan Agreement;
(C) The Borrowers wish to amend the Original Loan Agreement to, among other things, (i) increase the Total Revolving Credit Commitment, and (ii) extend the Revolving Credit Commitment Termination Date, and the Banks and the Agent are willing to amend the Original Loan Agreement on the terms and conditions hereinafter set forth;
(D) Certain of the Banks desire to increase their respective Revolving Credit Commitment to the amount set forth opposite their name on their respective signature page hereto and the Borrowers desire to accept such increased Revolving Credit Commitments; and
(E) All capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Original Loan Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. CHANGE IN REVOLVING CREDIT COMMITMENTS; ADDITIONAL
BORROWERS.
SECTION 1.1 REVOLVING CREDIT COMMITMENTS. From and after the date hereof, for purposes of the Loan Agreement, the Revolving Credit Commitment of each Bank shall be the amount set forth opposite such Bank's name on the signature pages hereto under the caption "Revolving Credit Commitment" as such amount may be increased or reduced pursuant to the terms of the Loan Agreement, and such amount (if changed) shall supersede and be deemed to amend the amount of its respective Revolving Credit Commitment as set forth opposite its name on the signature pages to the Original Loan Agreement.
SECTION 1.2 ADJUSTMENT OF OUTSTANDING LOANS. If any Loans are outstanding under the Original Loan Agreement on the date hereof, the Banks shall on the date hereof, at the direction of the Agent, make appropriate adjustments among themselves in order to insure that the amount (and type) of the Loans outstanding to the Borrowers from each Bank under the Loan Agreement (as of the date hereof) are proportionate to the aggregate amount of all of the Revolving Credit Commitments, after giving effect to the increased amount of the Revolving Credit Commitments of certain of the Banks hereunder. The Borrowers agree and consent to the terms of this Section 1.2.
SECTION 1.3 ASSUMPTION BY ADDITIONAL BORROWERS. The Additional Borrowers hereby: (i) agree to be a party to the Original Loan Agreement as amended hereby; (ii) assume, on a joint and several basis with the Original Borrowers, all of the Obligations of a "Borrower" under the Loan Agreement; (iii) agree to be bound as a "Borrower" by all of the terms of the Loan Agreement and to perform and discharge all of the obligations of a Borrower contained in or arising under the terms of the Loan Agreement; and (iv) agree that the terms "Borrower(s)" and "Loan Party(ies)" are deemed to include each of the Additional Borrowers.
SECTION 1.4 RELEASE OF CERTAIN ORIGINAL BORROWERS. From and after the date hereof, each of HCRI Broadview, Inc., HCRI Westlake, Inc., HCRI Beachwood, Inc. and HCRI Westmoreland, Inc. (i) shall no longer be bound as a "Borrower" under the Loan Agreement, (ii) each such entity is hereby released and discharged from all of the obligations of a "Borrower" contained in and arising under the terms of the Loan Agreement and the other Loan Documents to which each is a party, and (iii) none of the foregoing entities may receive the benefit, directly or indirectly, of any of the proceeds of the Loans under the Loan Agreement.
ARTICLE 2. AMENDMENTS TO ORIGINAL LOAN AGREEMENT; SUBSTITUTED NOTES.
SECTION 2.1 The Original Loan Agreement is hereby amended as follows:
(a) The second "WHEREAS" clause appearing on page one of the Original Loan Agreement is amended by deleting the amount "One Hundred Seventy-Five Million ($175,000,000) Dollars" appearing therein and substituting therefor the amount "Two Hundred Twenty-Five Million ($225,000,000) Dollars".
(b) The phrase "the aggregate amount set forth opposite such Bank's name on the signature pages hereof under the caption 'Revolving Credit Commitment'" appearing in the definition of the term "Revolving Credit Commitment" in Article 1 shall be deemed to refer to the amount set forth opposite each Bank's name on the signature pages hereto.
(c) The definition of "Revolving Credit Commitment Termination Date" appearing in Article 1 is deleted in its entirety and the following is substituted therefor:
"'Revolving Credit Commitment Termination Date' - initially, May 15, 2006, or any later date established in accordance with Section 2.23 hereof."
(d) The definition of "Total Revolving Credit Commitment" appearing in Article 1 is deleted in its entirety and the following is substituted therefor:
"'Total Revolving Credit Commitment' - the aggregate obligation of the Banks to make Loans hereunder up to the aggregate amount of Two Hundred Twenty-Five Million ($225,000,000) Dollars."
(e) Subsection 2.4(a) is deleted in its entirety and the following is substituted therefor:
"(a) The Loans made by each Bank shall be evidenced by a single joint and several promissory note of the Borrowers in substantially the form of Exhibit A annexed to Amendment No. 1 to Amended and Restated Loan Agreement dated as of May 15, 2003 ("AMENDMENT NO. 1") by and among the Borrowers, the Agent and the Banks party thereto (each, a "SUBSTITUTED NOTE" and, collectively, the "SUBSTITUTED NOTES"). Each Substituted Note shall be dated the date of Amendment No. 1, shall be payable to the order of such Bank in a principal amount equal to such Bank's Revolving Credit Commitment as in effect on the date of Amendment No. 1, and shall otherwise be duly completed. The Substituted Notes shall be payable as provided in Sections 2.1 and 2.5 hereof."
(f) Section 2.23 is amended by deleting the first sentence thereof in its entirety and substituting therefor the following:
"Subject to the following provisions, the Borrowers shall have the option to extend the Revolving Credit Commitment Termination Date to May 15, 2007."
(g) A new Section 2.24 is added reading as follows:
"SECTION 2.24 INCREASE IN TOTAL REVOLVING CREDIT
COMMITMENT.
"(a) The Borrowers may one time, at their sole
|
expense and effort and after consulting with the Agent, request: (i) one or more Banks acceptable to the Agent to increase (in the sole and absolute discretion of each such Bank) the amount of their respective Revolving Credit Commitments, and/or (ii) one or more other lending institutions acceptable to the Agent (each, a "NEW
LENDER") to become "Banks" and extend Revolving Credit Commitments
hereunder (each such existing Bank and each New Lender being referred
to as a "PROPOSED LENDER"). To request an increase pursuant to this
Section 2.24 (the "COMMITMENT INCREASE"), the Borrowers shall submit to
the Agent a written increase request signed by the Borrowers and in
form approved by the Agent (the "INCREASE REQUEST"), which shall
specify, as the case may be: (A) each such existing Bank and the amount
of the proposed increase to its Revolving Credit Commitment, or (B) the
proposed Revolving Credit Commitment for each New Lender. Promptly
following receipt of the Increase Request, the Agent shall advise each
Proposed Lender of the details thereof.
(b) If one or more Proposed Lender(s) shall have unconditionally agreed to such Increase Request in a writing delivered to the Borrowers and the Agent at any time prior to the 30th day following the date of the delivery to such Proposed Lenders(s) of the Increase Request (each such Proposed Lender being hereinafter referred to as an "INCREMENTAL LENDER"), then: (x) each such Incremental Lender which shall then be an existing Bank shall have its Revolving Credit Commitment increased by the amount set forth in the Increase Request, and (y) each such Incremental Lender which shall then be a New Lender shall be and become a "Bank" hereunder having a Revolving Credit Commitment equal to the amount set forth in such Increase Request, provided, however, that (1) immediately before and after giving effect thereto, no Default shall or would exist, (2) each such Incremental Lender shall have executed and delivered to the Agent a supplement to this Agreement providing for its increased Revolving Credit Commitment or its Revolving Credit Commitment, as applicable, in form approved by the Agent, (3) immediately after giving effect thereto, the aggregate amount of the Total Revolving Credit Commitment shall not exceed $300,000,000, (4) the increase of the Total Revolving Credit Commitment specified in the Increase Request shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000, (5) the Revolving Credit Commitment extended by each Incremental Lender which is a New Lender shall be in a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, and (6) the Commitment Increase shall not be permitted hereunder unless consummated on or prior to December 31, 2003.
(c) Simultaneously with the Commitment Increase under this Section 2.24, each Incremental Lender shall, to the extent necessary, purchase from each other existing Bank, and each other existing Bank shall sell to each Incremental Lender, in each case at par and without representation, warranty, or recourse (in accordance with and subject to the restrictions contained in Section 10.13), such principal amount of Loans of such other existing Bank(s), together with all accrued and unpaid interest thereon, as will result, after giving effect to such transaction, in each Bank's pro rata share of Loans outstanding being equal to such Lender's pro rata share of the Total Revolving Credit Commitment, provided that each such assignor Bank shall have received (to the extent of the interests, rights and obligations assigned) payment then due and owing of the outstanding principal amount of its Loans, accrued interest thereon, accrued fees,
commissions and all other amounts payable to it under the Loan Documents from the applicable assignee Banks (to the extent of such outstanding principal and accrued interest, fees and commissions) or the Borrowers (in the case of all other amounts)."
SECTION 2.2 In order to evidence the Loans, as amended hereby, the Borrowers shall execute and deliver to each Bank, simultaneously with the execution and delivery hereof, a substituted promissory note payable to the order of such Bank in substantially the form of Exhibit A annexed hereto (each a "SUBSTITUTED NOTE" and collectively the "SUBSTITUTED NOTES"). Each of the Banks shall, upon the execution and delivery by the Borrowers of its applicable Substituted Note as herein provided, mark the Note delivered to it in connection with the Original Loan Agreement "Replaced by Substituted Note" and return it to the Borrowers.
SECTION 2.3 (a) All references in the Original Loan Agreement or any other Loan Document to the "Revolving Credit Commitment(s)", the "Note(s)" and the "Loan Documents" shall be deemed to refer respectively, to the Revolving Credit Commitment(s) as amended hereby, the Substituted Note(s) and the Loan Documents as defined in the Original Loan Agreement together with, and as amended by this Amendment No. 1, the Substituted Notes and all agreements, documents and instruments delivered pursuant thereto or in connection therewith.
(b) All references in the Original Loan Agreement and the other Loan Documents to the "Loan Agreement", and also in the case of the Original Loan Agreement to "this Agreement", shall be deemed to refer to the Original Loan Agreement, as amended hereby.
(c) All references in the Substituted Notes to the "Revolving Credit Commitment Termination Date" shall be deemed to refer to the Revolving Credit Commitment Termination Date as defined in this Amendment No. 1.
SECTION 2.4 The Original Loan Agreement and the other Loan Documents shall each be deemed amended and supplemented hereby to the extent necessary, if any, to give effect to the provisions of this Agreement.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
(a) (i) The Borrowers hereby confirm, reaffirm and restate to each of the Banks and the Agent all of the representations and warranties set forth in Article 3 of the Original Loan Agreement as if such representations and warranties were made as of the date hereof, except for changes in the ordinary course of business which, either singly or in the aggregate, would not have a Material Adverse Effect.
(ii) Schedule 3.1 to the Original Loan Agreement is hereby amended as set forth in the Addendum to Schedule 3.1 annexed hereto. Schedules 3.6 and 3.16 to the Original Loan Agreement are hereby deleted in their entirety and Schedules 3.6 and 3.16 annexed hereto are substituted therefor.
(b) (i) The execution, delivery and performance by each Borrower of this Amendment No. 1 and the Substituted Notes are within its organizational powers and have been duly authorized by all necessary action (corporate or otherwise) on the part of each Borrower, (ii) this Amendment No. 1 and the Substituted Notes are the legal, valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its respective terms, and (iii) the execution, delivery and performance by each Borrower of this Amendment No. 1 and the Substituted Notes do not: (A) contravene the terms of any Borrower's organizational documents, (B) conflict with or result in a breach or contravention of, or the creation of any lien under, any document evidencing any contractual obligation to which any Borrower is a party or any order, injunction, writ or decree to which any Borrower or its property is subject, or (C) violate any requirement of law.
ARTICLE 4. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT.
This Amendment No. 1 shall become effective on the date of the fulfillment (to the satisfaction of the Agent) of the following conditions precedent:
(a) This Amendment No. 1 shall have been executed and delivered to the Agent by a duly authorized representative of the Borrowers, the Agent and each Bank.
(b) The Borrowers shall have executed and delivered to each of the Banks its Substituted Note.
(c) The Borrowers shall pay to the Agents (i) all fees provided for in the fee letter dated April 14, 2003, and (ii) all other fees payable to the Banks in connection with this Amendment No. 1.
(d) The Agent shall have received a Compliance Certificate from the Borrowers dated the date hereof and the matters certified therein, including, without limitation, that after giving effect to the terms and conditions of this Amendment No. 1, no Default or Event of Default shall exist, shall be true.
(e) The Agent shall have received copies of the following:
(i) Copies of all action, corporate or otherwise, taken by each of the Borrowers to authorize the execution, delivery and performance of this Amendment No. 1, the Substituted Notes and the transactions contemplated hereby, certified by its Secretary;
(ii) A certificate from the Secretary of each Original Borrower to the effect that its organizational documents delivered to the Agent pursuant to the Original Loan Agreement have not been amended since the date of such delivery and that each such document is in full force and effect and is true and correct as of the date hereof;
(iii) The organizational documents of the Additional Borrowers, certified by the Secretary of State of their respective states of organization;
(iv) Good standing certificates as of a recent date, with respect to each of the Additional Borrowers from the Secretary of State of their respective states of incorporation and each state in which each of them is qualified to do business; and
(v) An incumbency certificate (with specimen signatures) with respect to each of the Borrowers.
(f) All legal matters incident hereto shall be satisfactory to the Agent and its counsel.
ARTICLE 5. MISCELLANEOUS.
SECTION 5.1 ARTICLE 10 OF THE ORIGINAL LOAN AGREEMENT. The miscellaneous provisions under Article 10 of the Original Loan Agreement, together with the definition of all terms used therein, and all other sections of the Original Loan Agreement to which Article 10 refers are hereby incorporated by reference as if the provisions thereof were set forth in full herein, except that (i) the terms "Loan Agreement" and "Note(s)" shall be deemed to refer, respectively, to the Original Loan Agreement, as amended by this Amendment No. 1 and the Substituted Note(s), (ii) the term "this Agreement" shall be deemed to refer to this Amendment No. 1; and (iii) the terms "hereunder" and "hereto" shall be deemed to refer to this Amendment No. 1.
SECTION 5.2 CONTINUED EFFECTIVENESS. Except as amended hereby, the Original Loan Agreement and the other Loan Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms.
SECTION 5.3 COUNTERPARTS. This Amendment No. 1 may be executed by the parties hereto in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed on the date first above written.
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI TEXAS PROPERTIES, INC.
HCRI TEXAS PROPERTIES, LTD.
BY HEALTH CARE REIT, INC.,
ITS GENERAL PARTNER
HCRI NEVADA PROPERTIES, INC.
HCRI LOUISIANA PROPERTIES, L.P.
BY HCRI SOUTHERN INVESTMENTS I, INC.,
ITS GENERAL PARTNER
HEALTH CARE REIT INTERNATIONAL, INC.
HCN ATLANTIC GP, INC.
HCN ATLANTIC LP, INC.
HCN BCC HOLDINGS, INC.
HCRI INDIANA PROPERTIES, INC.
HCRI INDIANA PROPERTIES, LLC
BY HEALTH CARE REIT, INC.,
ITS MEMBER
HCRI LIMITED HOLDINGS, INC.
HCRI MASSACHUSETTS PROPERTIES, INC.
HCRI MASSACHUSETTS PROPERTIES TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI HOLDINGS TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI NORTH CAROLINA PROPERTIES, LLC
BY NORTH CAROLINA PROPERTIES I, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
HCRI KENTUCKY PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MASSACHUSETTS PROPERTIES TRUST II
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI SATYR HILL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI FRIENDSHIP, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI ST. CHARLES, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
[BORROWERS CONTINUED ON FOLLOWING PAGE]
HCRI MARYLAND PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI LAUREL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI NORTH CAROLINA PROPERTIES I, INC.
HCRI NORTH CAROLINA PROPERTIES III, LP
BY HCRI NORTH CAROLINA PROPERTIES II, INC.
ITS GENERAL PARTNER
HCRI NORTH CAROLINA PROPERTIES II, INC.
HCRI WISCONSIN PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSISSIPPI PROPERTIES, INC.
HCRI ILLINOIS PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSOURI PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI SURGICAL PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI TUCSON PROPERTIES, INC.
BY /S/ GEORGE L. CHAPMAN -------------------------------------------------- CHIEF EXECUTIVE OFFICER |
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the aforementioned entities, has executed this Amendment No. 1 to Amended and Restated Loan Agreement and intending that all entities above named are bound and are to be bound by the one signature as if he had executed this Amendment No. 1 to Amended and Restated Loan Agreement separately for each of the above named entities.
Health Care REIT, Inc. Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$52,500,000 KEY CORPORATE CAPITAL INC.,
AS A BANK
PRO RATA SHARE OF AGGREGATE By: /s/ F. Donald Kelly III
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: F. Donald Kelly III
Title: Vice President
23.333333333%
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ F. Donald Kelly III
------------------------------------------
Name: F. Donald Kelly III
Title: Vice President
|
Lending Office for Base Rate Loans and LIBOR Loans:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Healthcare Administrative Assistant
Address for Notices:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Mr. F. Donald Kelly III
Telecopier: (216) 689-5970
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$52,500,000 DEUTSCHE BANK TRUST COMPANY
AMERICAS
PRO RATA SHARE OF AGGREGATE By: /s/ Diane F. Rolfe
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Diane F. Rolfe
Title: Vice President
23.333333333%
Lending Office for Base Rate Loans
and LIBOR Loans:
|
Deutsche Bank Trust Company Americas 31 West 52nd Street New York, New York 10019 Attention: Diane F. Rolfe Vice President
Address for Notices:
Deutsche Bank Trust Company Americas
90 Hudson Street
Jersey City, New Jersey 07302
Attention: Roy Castrmonte
Telecopier: (201) 593-2310
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$40,000,000 BANK OF AMERICA, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Kevin Wagley
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Kevin Wagley
Title: Principal
17.777777778%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Address for Notices:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Telecopier: (888) 969-9232
|
Health Care REIT, Inc. Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$25,000,000 BANK ONE, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Jan E. Petrik
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Jan E. Petrik
Title: First Vice President
11.111111111%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank One, N.A.
600 Superior
Cleveland, Ohio 44114
Attention: Commercial Loan Operations
Address for Notices:
Bank One, N.A.
Commercial Banking
600 Superior
Cleveland, Ohio 44114
Attention: Ms. Jan Petrik
Telecopier: (216) 781-4567
|
Health Care REIT, Inc. Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$40,000,000 UBS AG, CAYMAN ISLANDS BRANCH
PRO RATA SHARE OF AGGREGATE By: /s/ Wilfred V. Saint
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Wilfred V. Saint
17.777777778% Title: Associate Director
Banking Products
Services, US
By: /s/ Patricia O'Kicki
------------------------------------------
Name: Patricia O'Kicki
Title: Director
Lending Office for Base Rate Loans
and LIBOR Loans:
UBS AG, Cayman Islands Branch
c/o UBS AG, Stamford Branch
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Address for Notices:
UBS Warburg LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Telecopier: (203) 719-3888
|
Health Care REIT, Inc. Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$15,000,000 COMERICA BANK
PRO RATA SHARE OF AGGREGATE By: /s/ Alicia R. Thornwell-Autry
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Alicia R. Thornwell-Autry
6.666666667% Title: Assistant Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Dawn Morgulec
Address for Notices:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Dawn Morgulec
Telecopier: (313) 222-3420
|
Health Care REIT, Inc. Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement Dated as of May 15, 2003
EXHIBIT 1
TO AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
LIST OF BORROWERS
ORIGINAL BORROWERS
NAME OF ORIGINAL BORROWER STATE OF ORGANIZATION ------------------------- --------------------- Health Care REIT, Inc. Delaware HCRI Pennsylvania Properties, Inc. Pennsylvania HCRI Texas Properties, Inc. Delaware HCRI Texas Properties, Ltd. Texas HCRI Nevada Properties, Inc. Nevada HCRI Louisiana Properties, L.P. Delaware Health Care REIT International, Inc. Delaware HCN Atlantic GP, Inc. Delaware HCN Atlantic LP, Inc. Delaware HCN BCC Holdings, Inc. Delaware HCRI Indiana Properties, Inc. Delaware HCRI Indiana Properties, LLC Indiana HCRI Limited Holdings, Inc. Delaware HCRI Massachusetts Properties Trust Massachusetts HCRI Massachusetts Properties, Inc. Delaware HCRI Holdings Trust Massachusetts HCRI North Carolina Properties, LLC Delaware HCRI Southern Investments I, Inc. Delaware HCRI Tennessee Properties, Inc. Delaware Pennsylvania BCC Properties, Inc. Pennsylvania HCRI Broadview, Inc.* Ohio HCRI Westlake, Inc.* Ohio HCRI Beachwood, Inc.* Ohio HCRI Kentucky Properties, LLC Kentucky HCRI Massachusetts Properties II Massachusetts HCRI Satyr Hill, LLC Virginia HCRI Friendship, LLC Virginia HCRI St. Charles, LLC Virginia HCRI Maryland Properties, LLC Maryland HCRI Laurel, LLC Maryland HCRI North Carolina Properties I, Inc. North Carolina HCRI North Carolina Properties III, LP North Carolina HCRI North Carolina Properties II, Inc. North Carolina HCRI Wisconsin Properties, LLC Wisconsin HCRI Westmoreland, Inc.* Delaware HCRI Mississippi Properties, Inc. Mississippi |
ADDITIONAL BORROWERS
NAME OF ADDITIONAL BORROWER STATE OF ORGANIZATION --------------------------- --------------------- HCRI Illinois Properties, LLC Delaware HCRI Missouri Properties, LLC Delaware HCRI Surgical Properties, LLC Ohio HCRI Tucson Properties, Inc. Delaware |
* Released as a "Borrower" pursuant to the terms of Section 1.4 of this Amendment No. 1.
ADDENDUM TO SCHEDULE 3.1 TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
STATES OF ORGANIZATION AND QUALIFICATION,
AND CAPITALIZATION OF ADDITIONAL BORROWERS
HCRI ILLINOIS PROPERTIES, LLC
(i) State of Organization: Delaware
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Illinois
(v) Subsidiaries: None
HCRI MISSOURI PROPERTIES, LLC
(i) State of Organization: Delaware
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Missouri
(v) Subsidiaries: None
HCRI SURGICAL PROPERTIES, LLC
(i) State of Organization: Ohio
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries: None
HCRI TUCSON PROPERTIES, INC.
(i) State of Incorporation: Delaware
(ii) Capitalization: Authorized Common Stock - 100 shares Issued Common Stock - 100 shares
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Arizona
(v) Subsidiaries: None
SCHEDULE 3.6
TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTATIVE AGENT
JUDGMENTS, ACTIONS, PROCEEDINGS
- Harry Young - HCRI has been named as a defendant in a suit in the Third Judicial Circuit, Madison County, Illinois in a case captioned Harry Young, Special Administrator of the Estate of Hazel Young vs. Cathedral Rock of West Granite City, Inc., d/b/a The Colonnades, et al., Case No. 01-L-1441. The Complaint alleges negligence and breaches of duty of care concerning care and treatment of a resident by a Tenant in the Tenant's facility. The Tenant is providing indemnification and a defense to HCRI. HCRI is being defended in this matter by Peter Krane, Esq., Armstrong Teasdale LLP, One Metropolitan Square, Suite 2600, St. Louis, MO 63102-2740. HCRI has moved to dismiss the Complaint because HCRI does not provide any care or treatment and did not owe a duty to the resident. HCRI believes plaintiffs' claims as to HCRI are meritless and HCRI will vigorously defend the suit.
- Carl Rutherford - HCRI has been named as a defendant in a suit in the Circuit Court for Roane County, Tennessee in a case captioned Carl Rutherford, as Administrator of the Estate of Mary Reid, Deceased vs. Royal Care of Harriman, Inc., aka Harriman Care & Rehabilitation Center, et al., Docket No. 12684. The Complaint alleges negligence and breaches of duty of care concerning care and treatment of a resident by a Tenant in the Tenant's facility. The Tenant is providing indemnification and a defense to HCRI. The HCRI is being defended in this matter by Richard C. May, Esq. and Loring Justice, Esq., Whelchel, May & Associates, P.O. Box 11407, Knoxville, TN 37939-1407. HCRI believes plaintiffs' claims as to HCRI are meritless and HCRI will vigorously defend the suit.
- Janace Ogle - HCRI has been named as a defendant in a suit in the Circuit Court for Sevier County, Tennessee in a case captioned Janace F. Ogle bnf Vicki Suttles vs. HQM of Pigeon Forge, LLC dba Pigeon Forge Care & Rehabilitation Center, et al., Docket No. 2002-0741. The Complaint alleges negligence and breaches of duty of care concerning care and treatment of a resident by a Tenant in the Tenant's facility. The Tenant is providing indemnification and a defense to HCRI. HCRI is being defended in this matter by Richard C. May, Esq. and Loring Justice, Esq., Whelchel, May & Associates, P.O. Box 11407, Knoxville, TN 37939-1407. HCRI believes plaintiffs' claims as to HCRI are meritless and HCRI will vigorously defend the suit.
- Sylvia Perkins - HCRI has been named as a defendant in a suit in the Superior Court of the Commonwealth of Massachusetts in a case captioned Sylvia Ure Tietjen-Perkins vs. Daniel J. Kane, et al., Case No. 02-1776-B. The Complaint alleges negligence and breaches of duty of care concerning care and treatment of a resident by a Tenant in the Tenant's facility. The Tenant is providing indemnification and a defense to HCRI. HCRI is being defended in this
matter by Peter McCormick, Esq., Law Office of Peter Feeherry, 25 New Chardon Street, Boston, MA 02114. HCRI believes plaintiffs' claims as to HCRI are meritless and HCRI will vigorously defend the suit.
- Royal Care Litigation - HCRI has been named as a defendant in six separate suits filed in State Court in Tennessee filed by a seller of six facilities against HCRI and several other defendants. Each of the suits was filed in the Circuit Court for Bradley County, Tennessee on October 25, 2002 (Docket No. V02-923; Docket No. V02-920; Docket No. V02-939; Docket No. V02-921; Docket No. V02-922; and Docket No. V02-926). The Tenant is providing indemnity and a defense to HCRI. The plaintiff and Tenant have allowed all defendants to have extensions of time to answer the complaints because the plaintiffs and Tenant are attempting to negotiate a settlement of the dispute. HCRI believes plaintiffs' claims as to HCRI are meritless and HCRI will vigorously defend each of the suits.
- Windmoor - HCRI has been notified that it and other parties are the subject of a federal "qui tam" whistleblower lawsuit filed by an undisclosed relator in the Middle District of Florida, Tampa Division, under the federal False Claims Act, which claim relates to the appropriateness of Medicare reimbursement in the amount of approximately $2.6M resulting from the sale of two facilities in 1997. Possible penalties under the False Claims Act include treble damages. The action was filed under seal, which is the normal procedure for such "qui tam" cases, and further information is unavailable at this time. The United States Attorney's office is investigating the allegations, and has not made a decision whether the United States will join in the action. HCRI's attorneys are working with the federal government representatives to give them the information necessary to assess the allegations. It is HCRI's belief that the payments were appropriate and that the allegations are baseless. HCRI intends to fully defend against these claims.
SCHEDULE 3.16
TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
EMPLOYEE BENEFIT PLANS
Health Care REIT, Inc. retirement and trust (401(k)) plan
Health Care REIT, Inc. money purchase pension plan (merged into the retirement plan effective September 30, 2002)
Health Care REIT, Inc. supplemental executive retirement plan
Health Care REIT, Inc. group insurance benefit plan
EXHIBIT A
TO AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
FORM OF SUBSTITUTED NOTE
$____________ DATED: MAY 15, 2003
FOR VALUE RECEIVED, each of the undersigned (collectively, the
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"BORROWERS"), hereby jointly and severally promises to pay to the order of ___________________________ (the "BANK") on the Revolving Credit Commitment Termination Date, the principal sum of _____________________ ($__________) Dollars, or such lesser amount as shall be equal to the aggregate unpaid principal amount of the Loans outstanding on the close of business on the Revolving Credit Commitment Termination Date made by the Bank to the Borrowers; and to pay interest on the unpaid principal amount of each Loan from the date thereof at the rates per annum and for the periods set forth in or established by the Agreement and calculated as provided therein.
All indebtedness outstanding under this Substituted Note shall bear interest (computed in the same manner as interest on this Substituted Note prior to the relevant due date) at the applicable Post-Default Rate for all periods when an Event of Default has occurred and is continuing, commencing on the occurrence of such Event of Default until such Event of Default has been cured or waived as acknowledged in writing by the Agent, and all of such interest shall be payable on demand.
Anything herein to the contrary notwithstanding, the obligation of the Borrowers to make payments of interest shall be subject to the limitation that payments of interest shall not be required to be made to the Bank to the extent that the Bank's receipt thereof would not be permissible under the law or laws applicable to the Bank limiting rates of interest which may be charged or collected by the Bank. Any such payments of interest which are not made as a result of the limitation referred to in the preceding sentence shall be made by the Borrowers to the Bank on the earliest interest payment date or dates on which the receipt thereof would be permissible under the laws applicable to the Bank limiting rates of interest which may be charged or collected by the Bank.
Payments of both principal and interest on this Substituted Note are to be made to the office of KeyBank National Association, as Agent, at 127 Public Square, Cleveland, Ohio 44114-1306 or such other place as the holder hereof shall designate to the Borrowers in writing, in lawful money of the United States of America in immediately available funds.
This Substituted Note is one of the Substituted Notes referred to in, and is entitled to the benefits of, the Amended and Restated Loan Agreement dated August 23, 2002, as amended by Amendment No. 1 to Amended and Restated Loan Agreement dated of even date herewith by and among the Borrowers, the Banks signatory thereto (including the Bank) and the Agent (as so amended and as it may be further amended, modified or supplemented from time to time, the "AGREEMENT"). This Substituted Note supersedes and is given in substitution for the Note dated August 23, 2002 made by the Borrowers to the order of the Bank in the original principal amount of $___________ but does not constitute a novation, extinguishment or termination of the obligations evidenced thereby. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Agreement.
The Bank is hereby authorized by the Borrowers to record on the schedule to this Substituted Note (or on a supplemental schedule thereto) the amount of each Loan made by the Bank to the Borrowers and the amount of each payment or repayment of principal of such Loans received by the Bank, it being understood, however, that failure to make any such notation shall not affect the rights of the Bank or the obligations of the Borrowers hereunder in respect of this Substituted Note. The Bank may, at its option, record such matters in its internal records rather than on such schedule.
Upon the occurrence of any Event of Default, the principal amount and accrued interest on this Substituted Note may be declared due and payable in the manner and with the effect provided in the Loan Agreement.
The Borrowers shall pay costs and expenses of collection, including, without limitation, attorneys' fees and disbursements in the event that any action, suit or proceeding is brought by the holder hereof to collect this Substituted Note.
THIS SUBSTITUTED NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING TO CONFLICTS OF LAWS.
[Signatures on Following Page]
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI TEXAS PROPERTIES, INC.
HCRI TEXAS PROPERTIES, LTD.
BY HEALTH CARE REIT, INC.,
ITS GENERAL PARTNER
HCRI NEVADA PROPERTIES, INC.
HCRI LOUISIANA PROPERTIES, L.P.
BY HCRI SOUTHERN INVESTMENTS I, INC.,
ITS GENERAL PARTNER
HEALTH CARE REIT INTERNATIONAL, INC.
HCN ATLANTIC GP, INC.
HCN ATLANTIC LP, INC.
HCN BCC HOLDINGS, INC.
HCRI INDIANA PROPERTIES, INC.
HCRI INDIANA PROPERTIES, LLC
BY HEALTH CARE REIT, INC.,
ITS MEMBER
HCRI LIMITED HOLDINGS, INC.
HCRI MASSACHUSETTS PROPERTIES, INC.
HCRI MASSACHUSETTS PROPERTIES TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI HOLDINGS TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI NORTH CAROLINA PROPERTIES, LLC
BY NORTH CAROLINA PROPERTIES I, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
HCRI KENTUCKY PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MASSACHUSETTS PROPERTIES TRUST II
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI SATYR HILL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI FRIENDSHIP, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI ST. CHARLES, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI MARYLAND PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
[BORROWERS CONTINUED ON FOLLOWING PAGE]
HCRI LAUREL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI NORTH CAROLINA PROPERTIES I, INC.
HCRI NORTH CAROLINA PROPERTIES III, LP
BY HCRI NORTH CAROLINA PROPERTIES II, INC.
ITS GENERAL PARTNER
HCRI NORTH CAROLINA PROPERTIES II, INC.
HCRI WISCONSIN PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSISSIPPI PROPERTIES, INC.
HCRI ILLINOIS PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSOURI PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI SURGICAL PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI TUCSON PROPERTIES, INC.
BY _________________________________________
CHIEF EXECUTIVE OFFICER
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the aforementioned entities, has executed this Substituted Note intending that all entities above named are bound and are to be bound by the one signature as if he had executed this Substituted Note separately for each of the above named entities.
SCHEDULE A
PRINCIPAL PAYMENTS
Substituted Note dated May 15, 2003
payable to the order of
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Interest Period
(if other than a
Principal Base Rate Amount Unpaid
Amount of Loan) and of Principal Principal Notation
Date Loan Interest Rate Repaid Balance Made By
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Exhibit 10.2
CREDIT AGREEMENT
This Credit Agreement (the "Agreement") is entered into as of the 31st day of May, 2003, by and between HEALTH CARE REIT, INC., a Delaware corporation ("Borrower") and FIFTH THIRD BANK, an Ohio banking corporation ("Bank").
Section 1. Definitions.
All financial terms used in the Agreement but not defined in the Loan Documents have the meanings given to them by generally accepted accounting principles ("GAAP"). All other undefined terms have the meanings given to them in the Ohio Uniform Commercial Code.
Section 2. Loan.
2.01. Revolving Credit Loan. (a) Subject to the terms and conditions hereof, Bank hereby extends to Borrower a line of credit facility (the "Facility") (the "Loan") under which Bank may make loans (the Revolving Loans") to Borrower at Borrower's request from time to time during the term of this Agreement. Bank will have discretion at all times as to whether or not to make any Revolving Loan, if there is any Event of Default. Borrower may borrow, prepay, and reborrow under the Facility, provided that the principal amount of all Revolving Loans outstanding at any one time under the Facility will not exceed the foregoing limits or those limits specified in the Revolving Note. If the amount of the Revolving Loans outstanding at any time under the Facility exceeds the limits set forth above or in the Revolving Note, Borrower will immediately pay the amount of such excess to Bank. Bank has agreed to make this loan upon the terms and subject to the conditions of this Agreement and all documents executed pursuant to or in connection with this Agreement (all such documents and this Agreement will be called ("Loan Documents"), provided the loan is secured as set forth in this Agreement.
(b) Borrower may request a Revolving Loan by written or telephone notice to Bank. Bank will make a Revolving Loan by wire transfer to any account designated by Borrower. Loan proceeds may be used for purposes not prohibited herein.
(c) On the date hereof, Borrower will duly issue and deliver to
Bank a Revolving Note (the "Revolving Note"), in the principal amount of THIRTY
MILLION and 00/100 DOLLARS ($30,000,000.00) bearing interest as specified in
Section 2.02 herein.
(d) The term of the Facility will expire on MAY 31, 2004 and the Revolving Note will become payable in full on that date.
2.03 Interest on Revolving Credit Loan. The principal amounts outstanding hereunder shall bear interest commencing on the date of the first advance hereunder at the rate or rates per annum set forth below which shall be designated by Borrower as more fully set forth herein. At any time, from time to time, during the term of this note, so long as no Event of Default exists and so long as such Borrowings are not then subject to an Interest Rate Election, Borrower may notify Bank that it wishes to exercise its right to adjust the rate of interest accruing on some or all amounts of principal outstanding under this Note (in a minimum amount of $500,000.00) to one of the rates set forth below, however, once the rate of interest accruing against any amounts outstanding hereunder is adjusted to one of the following interest rates during an Interest Period, Borrower may not elect to adjust such interest rate to a different interest rate until the expiration of such Interest Period:
(a) LIBOR Rate. Upon telephonic notice by Borrower to Bank, Borrower may elect to have all or any portion of the Borrowings in a minimum amount of $500,000.00 per election bear interest at the per annum rate equal to two hundred basis points (200) in excess of the LIBOR Rate (a "LIBOR Rate Election"). Such notice shall inform Bank of the amount of Borrowings to be subject to the LIBOR Rate Election, the LIBOR interest period and the effective date of the LIBOR interest period.
Borrower's right to make a LIBOR Rate Election shall be terminated automatically if Bank, by telephonic notice, shall notify Borrower that LIBOR deposits with a maturity corresponding to the maturity of the LIBOR Interest Period, in an amount equal to the Borrowings to be subject to the LIBOR Rate Election are not readily available in the London Inter-Bank Offered Rate Market, or that, by reason of circumstances affecting such Market, adequate and reasonable methods do not exist for ascertaining the interest rate applicable to such deposits for the proposed LIBOR Interest Period.
In addition, notwithstanding anything herein contained to the contrary, if, prior to or during any period with respect to which a LIBOR Rate is in effect, any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, shall make it unlawful for the Bank to find or maintain its funding in Eurodollars of any portion of the Borrowings subject to the LIBOR Rate or otherwise to give effect to Bank's obligations as contemplated hereby, (i) Bank may by written notice to Borrower, declare Bank's obligations in respect of the LIBOR Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Bank shall forthwith cease to be in effect, and interest shall from and after such date be calculated at Prime Rate, unless Borrower shall thereafter elect one or more other Interest Rate Election.
(b) Prime Rate. Upon telephonic notice by Borrower to Bank prior to or on the Effective Date, Borrower may elect to have all or part of the Borrowings (provided such Borrowings are not then subject to an Interest Rate Election) bear interest at the per annum rate equal to the Prime Rate ("Prime Rate Election"). Such telephonic notice shall inform Bank of the amount of the Borrowings to be subject to the Prime Rate Election, the Prime Rate Interest Period and the Effective Date for the Prime Rate Interest Period.
If at any time during the term hereof (i) the outstanding principal hereunder is less than $500,000.00, or (ii) Borrower fails to designate one of the interest rates set forth above or at any time after Borrower has elected to adjust the interest rate accruing on any principal outstanding hereunder to a rate other than the fixed rate set forth above, at the expiration of any Interest Period, if Borrower has not made another Interest Rate Election hereunder, then in either such event, such outstanding amounts of principal will accrue interest at a rate of interest equal to the Prime Rate.
As used herein, the following terms will have the meanings set forth below:
(a) "Effective Date" means the date on which a LIBOR Rate Election or Prime Rate Election will begin.
(b) "Interest Rate Election" means a LIBOR Rate Election, or a Prime Rate Election or any one or more of the foregoing.
(c) "LIBOR Interest Period" means, with respect to a Borrowing elected to accrue interest at the LIBOR Rate, a period of 30, 60 or 90 days commencing on a business day selected by the Borrower pursuant to this Note. Such LIBOR Interest Period shall end on the day in the succeeding calendar month which corresponds numerically to the beginning day of such LIBOR Interest Period, provided, however, that if there is no such numerically corresponding day in such succeeding month, such LIBOR Interest Period shall end on the last business day of such succeeding month. If a LIBOR Interest Period would otherwise end on a day which is not a business day, such LIBOR Interest Period shall end on the next succeeding business day, provided, however, that if said next succeeding business day falls in a new month, such LIBOR Interest Period shall end on the immediately preceding business day.
2.03 Statements. After the end of each quarter, Bank will render to Borrower a statement on each of Borrower's loan accounts with Bank hereunder, which statement will be considered correct and will be conclusively binding upon Borrower unless Borrower notifies Bank in writing of any discrepancy within thirty (30) days from the date of such statement.
Section 3. Representations And Warranties.
Borrower hereby warrants and represents to Bank the following:
3.01 Organization and Qualification. Borrower is duly organized and validly existing under the laws of its state of organization and has the power to own its assets and to transact the business in which it is presently engaged and in which it proposes to be engaged. Borrower is in good standing in its state of organization and in each state in which it is qualified to do business unless the failure to so qualify would have a material adverse effect on Borrower.
3.02 Due Authorization. The execution, delivery and performance by Borrower of this Agreement, the Loan and any other Loan Documents have been duly authorized by all necessary corporate action, and will not contravene any law or any governmental rule or order binding on Borrower, or the Articles of Incorporation, Code of Regulations or Bylaws of Borrower, nor violate any agreement or instrument by which Borrower is bound nor result in the creation of a lien on any assets of Borrower except the lien to Bank granted herein. Borrower has duly executed and delivered this Agreement and the other Loan Documents and they are valid and binding obligations of Borrower enforceable according to their respective terms except as limited by equitable principles and by bankruptcy, insolvency or similar laws affecting the rights of creditors generally. No notice to or consent by any governmental body is needed in connection with this transaction.
3.03 Litigation. There is no litigation, nor are there any proceedings by or before any public body, agency or authority presently pending or threatened against Borrower or any other person, the outcome of which might materially and adversely affect the continued operations or assets of Borrower, or the transactions contemplated by this Agreement.
3.04 Business. Borrower is not a party to or subject to any agreement or restriction which in the opinion of Borrower's management is so unusual or burdensome that it might have a material adverse effect on Borrower's business, properties or prospects.
3.05 Laws and Taxes. To the best of Borrower's knowledge, Borrower is in compliance with all laws, regulations, rulings, orders, injunctions, decrees, conditions or other requirements applicable to or imposed upon Borrower by any law or by any governmental authority, court or agency. Borrower has filed all required tax returns and reports that are now required to be filed by it in connection with any federal, state and local tax, duty or charge levied, assessed or imposed upon Borrower or its assets, including unemployment, social security, and real estate taxes. Borrower has paid all taxes which are now due and payable. No taxing authority has asserted or assessed any additional tax liabilities against Borrower which are outstanding on the date of this Agreement. Borrower has filed its 2001 tax returns in a timely manner.
3.06 Financial Condition. All financial information relating to Borrower which has been or may hereafter be delivered to Bank is true and correct and has been prepared in accordance with generally accepted accounting principles consistently applied. Borrower has no material obligations or liabilities of any kind not disclosed in that financial information, and there has been no material adverse change in the financial condition of Borrower nor has Borrower suffered any damage, destruction or loss which has adversely affected its business or assets since the submission of the most recent financial information to Bank.
3.07 Title to Properties. Borrower has good and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary course of its business, except for such defects in title as could not individually or in the aggregate, have a material adverse effect on Borrower.
3.08 Defaults. Borrower is in compliance with all material agreements applicable to it and to the best of Borrower's knowledge, there does not now exist any default or violation by Borrower of or under any of the terms, conditions or obligations of (a) its Articles of Incorporation or Bylaws, or (b) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement or other instrument to which Borrower is a party or by which it is bound, and the consummation of the transactions contemplated by this Agreement will not result in such default or violation, which default could have a material adverse effect on Borrower.
3.09 Subsidiaries. If Borrower has any additional subsidiaries at any time during the term of this Agreement, the term "Borrower" in each representation, warranty and covenant herein will mean "Borrower and each subsidiary individually and in the aggregate," and Borrower will cause each subsidiary to be in compliance therewith.
3.10 ERISA. To the best of Borrower's knowledge, Borrower is in
compliance with all of its obligations to contribute to any employee benefit
plan or pension plan regulated by the Federal Employee Retirement Income
Security Act of 1974 ("ERISA"). Borrower has not received notice informing it
that it is not in full compliance with any of the requirements of ERISA, and the
regulations promulgated thereunder and, there exists no event described in
Section 4043(3) thereof ("Reportable Event").
3.11 Environmental Laws. To the best of Borrower's knowledge, (a) Borrower has obtained all permits, licenses and other authorizations which are required under environmental laws and Borrower is in compliance in all material respects with all terms and conditions of the required permits, licenses and authorizations, and is also in compliance in all material respects with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in the environmental laws, which failure to obtain or noncompliance could have a material adverse effect on Borrower.
(b) To the best of Borrower's knowledge, Borrower is not aware of, and has not received notice of, any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent compliance or continued compliance, in any material respect, with Environmental Laws, or may give rise to any material common law or legal liability, or otherwise from the basis of any material claim, action, demand, suit, proceeding, hearing, study, or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling, or the emission, discharge, release or threatened release into the environment, of any pollutant, contaminant, chemical, or industrial, toxic or hazardous substance or waste, which could have a material adverse effect on Borrower.
(c) There is no civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation or proceeding pending or to the best of Borrower's knowledge, threatened against Borrower, relating in any way to environmental laws, which could have a material adverse effect on Borrower.
3.12 Margin Stock. No part of the Facility will be used to purchase or carry, or to reduce or retire or refinance credit incurred to purchase or carry, any margin stock (within the meaning of Regulations U and X of the Board of Governors of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any margin stock. If requested by Bank, Borrower will furnish to Bank statements in conformity with the requirements of Federal Reserve Form U-1.
3.13 Licenses, Etc. Borrower has obtained any and all licenses, permits, franchises, governmental authorizations, patents, trademarks, copyrights or other rights necessary for the ownership of its properties and the advantageous conduct of its business, the failure of which could have a material adverse effect on Borrower. Borrower possesses adequate licenses, patents, patent applications, copyrights, trademarks, trademark applications, and trade names to continue to conduct its business as heretofore conducted by it, without any conflict with the rights of any other person or entity, which the lack thereof could have a material adverse effect on Borrower. All of the foregoing are in full force and effect and none of the foregoing are known to conflict with the rights of others, which conflict could have a material adverse effect on Borrower.
Section 4. Affirmative Covenants.
4.01 Affirmative Covenants. Borrower shall comply with the Affirmative Covenants set forth in the Amended and Restated Loan Agreement dated August 23, 2002 by and among Health Care REIT, Inc., and its subsidiaries, the Banks Signatory thereto, KeyBank National Association and Deutsche Bank Securities, Inc., as such Agreement is amended, supplemented or modified (the "Key Agreement") or (b) a replacement loan agreement.
4.02 Closing Costs. Borrower shall pay to Bank its fees, costs and expenses (including, without limitation,
reasonable attorneys' fees, court costs, litigation and other expense) (collectively, "Costs") incurred or paid by Bank in negotiating, documenting, administering, and enforcing the Loan Documents and Bank's security interest in the Collateral or any other property pledged to secure the Facility. The costs will be due upon demand by Bank. If Borrower fails to pay the Costs when upon such demand, Bank is entitled to disburse such sums as an advance under the Facility, thereafter the Costs will bear interest from the date incurred or disbursed at the highest rate set forth in the Note. Borrower shall be responsible for all out of pocket expenses incurred by Borrower and Bank.
4.03 Other Amounts Deemed Loan. If Borrower fails to pay any tax, assessment, governmental charge or levy or to maintain insurance within the time permitted by this Agreement, or to discharge any lien prohibited hereby, or to comply with any other obligation, Bank may, but shall not be obligated to, pay, satisfy, discharge or bond the same for the account of Borrower, and to the extent permitted by law and at the option of Bank, all monies so paid by Bank on behalf of Borrower will be deemed Revolving Loans and Obligations.
Section 5. Events of Default and Remedies.
5.01 Events of Default. (a) If any one or more of the following
events ("Events of Default") shall occur and be continuing, the Loan shall
terminate and the entire unpaid balance of the principal of and interest on the
Loan outstanding and all other obligations and indebtedness of the Borrower to
the Bank arising hereunder and under the Loan Documents shall immediately become
due and payable upon written notice to that effect given to the Borrower by the
Bank (except in the case of the occurrence of any Event of Default described in
Section 5.01(c), (d) or (f) no such notice shall be required), without
presentment or demand for payment, notice of non-payment, protest or further
notice or demand of any kind, all of which are expressly waived by the Borrower.
(b) Borrower defaults in the payment of any principal or interest on any Obligation when due and payable, by acceleration or otherwise; or
(c) a court enters a decree or order for relief with respect to Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law then in effect, or appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of Borrower or for any substantial part of its property, or orders the wind-up or liquidation of its affairs; or a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law is filed and is pending for thirty (30) days without dismissal; or
(d) Borrower commences a voluntary case under any applicable bankruptcy, insolvency or other similar law in effect, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as such debts become due, or takes corporate action in furtherance of any of the foregoing; or
(e) final judgment of the payment of money in excess of $1,500,000.00 is rendered against Borrower and remains undischarged for 10 days during which execution is not effectively stayed; or
(f) the dissolution of Borrower; or,
(g) Borrower shall fail to comply with the covenants as set forth in either (a) Article 6 of the Key Agreement, or (b) a replacement agreement.
5.02 Remedies. If any Event of Default will occur, Bank may cease advancing money hereunder, and/or declare all Obligations to be due and payable forthwith, whereupon they will forthwith become due and payable without presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived by Borrower.
5.03 Setoff. If any Event of Default will occur, Bank is authorized, without notice to Borrower, to offset and apply to all or any part of the Obligations all moneys, credits and other property of any nature whatsoever of Borrower now or at any time hereafter in the possession of, in transit to or from, under the control or custody of, or on deposit with (whether
held by Borrower individually or jointly with another party), Bank, including but not limited to certificates of deposit.
5.04 Default Rate. After the occurrence of an Event of Default, the Bank may increase the interest rate on any loan in accordance with the provisions of any note evidencing the loan. This provision does not constitute a waiver of any Events of Default or an agreement by Bank to permit any late payments whatsoever.
5.05 Late Payment Penalty. If any payment is not paid when due (whether by acceleration or otherwise), Borrower agrees to pay to Bank a late payment fee equal to five percent (5%) of the payment amount, with a minimum fee of $20.00.
5.06 No Remedy Exclusive. No remedy set forth herein is exclusive of any other available remedy or remedies, but each is cumulative and in addition to every other remedy available under this Agreement, the Loan Documents or as maybe now or hereafter existing at law, in equity or by statute. Borrower waives any requirement of marshalling of assets which may be secured by any of the Loan Documents.
5.07 Effect of Termination. The termination of this Agreement will not affect any rights of either party or any obligation of either party to the other, arising prior to the effective date of such termination, and the provisions hereof shall continue to be fully operative until all transactions entered into, rights created or Obligations incurred prior to such termination have been fully disposed of, concluded or liquidated. The security interest, lien and rights granted to Bank hereunder and under the Loan Documents will continue in full force and effect, notwithstanding the termination of this Agreement or the fact that no Loans are outstanding to Borrower, until all of the Obligations, have been paid in full.
Section 6. Conditions Precedent.
6.01 Conditions to Loan. Bank will have no obligation to make or advance any Loan until Borrower has delivered to Bank at or before the closing date, in form and substance satisfactory to Bank:
(a) An executed Revolving Note of even date herewith.
(b) A Corporate Resolution of Borrower.
(c) An executed Credit Agreement.
(d) Such additional information and materials as Bank may reasonably request.
6.02 Conditions to Each Loan. On the date of the Revolving Loan, the following statements will be true:
(a) All of the representations and warranties contained herein and in the Loan Documents will be correct in all material respects as though made on such date.
(b) No event will have occurred and be continuing, or would result from such Loan, which constitutes an Event of Default, or would constitute an Event of Default but for the requirement that notice be given or lapse of time or both.
(c) The aggregate unpaid principal amount of the Revolving Loans after giving effect to such Revolving Loans will not violate the lending limits set forth in Section 2.01 of this Agreement.
The acceptance by Borrower of the proceeds of each Loan will be deemed to constitute a representation and warranty by Borrower that the conditions in Section 7.02 of this Agreement, other than those that have been waived in writing by Bank, have been satisfied.
Section 7. Miscellaneous Provisions.
7.01 Miscellaneous. This Agreement, the exhibits and the other Loan Documents are the complete agreement of the parties hereto and supersede all previous understandings relating to the subject matter hereof. This Agreement may be amended only in writing signed by the party against whom enforcement of this amendment is sought. This Agreement may be executed in counterparts. If any part of this Agreement is held invalid, the remainder of this Agreement will not be affected thereby. This Agreement is and is intended to be a continuing agreement and will remain in full force and effect until the Loan is finally and irrevocably paid in full.
7.02 Waiver by Borrower. Borrower waives notice of non-payment, demand, presentment, protest or notice of protest of any accounts, and all other notices (except those notices specifically provided for in this Agreement or other Loan Documents); consents to any renewals or extensions of time of payment thereof; and generally waives any all suretyship defenses and defenses in the nature thereof.
7.03 Binding Effect. This Agreement will be binding upon and inure to the benefit of the respective legal representatives, successors and assigns of the parties hereto; however, Borrower may not assign any of its rights or delegate any of its obligations hereunder. Bank (and any subsequent assignee) may transfer and assign this Agreement or may assign partial interests or participation in the Loans to other persons. Bank may disclose to all prospective and actual assignees and participants all financial, business and other information about Borrower which Bank may possess at any time.
7.04 Subsidiaries. If Borrower has any Subsidiaries at any time during the term of this Agreement, the term "Borrower" in each representation, warranty and covenant herein will mean "Borrower" and each Subsidiary individually and in the aggregate, and Borrower will cause each Subsidiary to be in compliance therewith.
7.05 Survival. All representations, warranties, covenants and agreements made by Borrower herein and in the Loan Documents will survive the execution and delivery of this Agreement, the Loan Documents and the issuance of the Note.
7.06 Delay or Omission. No delay or omission on the part of Bank in exercising any right, remedy or power arising from any Event of Default will impair any such right, remedy or power; or any other right, remedy or power to be considered a waiver; or any right, remedy or power or any Event of Default nor will the action or omission to act by Bank upon the occurrence of any Event of Default impair any right, remedy or power arising as a result thereof or affect any subsequent Event of Default of the same or different nature.
7.07 Notices. Any notices under or pursuant to this Agreement will be deemed duly sent when delivered in hand or when mailed by registered or certified mail, return receipt requested, addressed as follows:
To Borrower: Health Care REIT, Inc.
One Seagate, Suite 1950
Toledo, Ohio 43603
Attention: Michael A. Crabtree, Treasurer
To Bank: Fifth Third Bank
606 Madison Avenue
Toledo, Ohio, 43604
Attention: Lisa Anderson, Vice President
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Either party may change such address by sending notice of the change to the other party.
7.08 No Partnership. Nothing contained herein or in any of the Loan Documents is intended to create or will be construed to create any relationship between Bank and Borrower other than as expressly set forth herein or therein and will not create any joint venture, partnership or other relationship.
7.09 Indemnification. If after receipt of any payment of all or part of the Obligations, Bank is for any reason
compelled to surrender such payment to any person or entity, because such payment is determined to be void or voidable as a preference, impermissible setoff, or diversion of trust funds, or for any other reason, this Agreement will continue in full force and effect and Borrower will be liable to, and will indemnify, save and hold Bank, its officers, directors, attorneys, and employees harmless of and from the amount of such payment surrendered. The provisions of this Section will be and remain effective notwithstanding any contrary action which may have been taken by Bank in reliance on such payment, and any such contrary action so taken will be without prejudice to Bank's rights under this Agreement and will be deemed to have been conditioned upon such payment becoming final, indefeasible and irrevocable. In addition, Borrower will indemnify, defend, save and hold Bank, its officers, directors, attorneys, and employees harmless of, from and against all claims, demands, liabilities, judgments, losses, damages, costs and expenses, joint or several (including all accounting fees and attorneys' fees reasonably incurred), that Bank or any such indemnified party may incur arising out of this Agreement, any of the Loan Documents or any act taken by Bank hereunder except for the willful misconduct or gross negligence of such indemnified party. The provisions of this Section will survive the termination of this Agreement.
7.10 Governing Law; Jurisdiction. This Agreement, the Note and the other Loan Documents, will be governed by the domestic laws of the State of Ohio. Borrower agrees that the state and federal courts in Lucas County, Ohio, or any other court in a jurisdiction in which Borrower does business and in which Bank initiates proceedings have exclusive jurisdiction over all matters arising out of this Agreement, and that service of process in any such proceeding will be effective if mailed to Borrower at its address described in the Notices section of this Agreement. BANK AND BORROWER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement by their duly authorized officers as of the date first above written.
BORROWER:
HEALTH CARE REIT, INC.,
A DELAWARE CORPORATION
By: /s/ George L. Chapman
----------------------------------------
George L. Chapman, Chairman of the Board
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FIFTH THIRD BANK,
AN OHIO BANKING CORPORATION
By: /s/ Lisa J. Anderson
----------------------------------------
Lisa J. Anderson, Vice President
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Exhibit 12.1
STATEMENT REGARDING COMPUTATION
OF RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(UNAUDITED)
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31 MARCH 31
----------------------------------------------------------------------- ----------
1998 1999 2000 2001 2002 2003
----------------------------------------------------------------------- ----------
(DOLLARS IN THOUSANDS)
EARNINGS:
Income from continuing operations before
extraordinary items(1) $60,830 $71,928 $63,872 $59,219 $66,983 $19,269
Fixed charges 26,455 36,403 38,866 34,644 44,644 12,769
Capitalized interest (7,740) (8,578) (3,079) (841) (170) (258)
Equity (earnings) losses in less than 50%
owned subsidiary (380) 378 (318) (332) (15) (81)
------- -------- ------- ------- -------- -------
Earnings $79,165 $100,131 $99,341 $92,690 $111,442 $31,699
======= ======== ======= ======= ======== =======
FIXED CHARGES:
Interest expense(2) $18,030 $26,916 $34,622 $32,028 $42,101 $11,876
Capitalized interest 7,740 8,578 3,079 841 170 258
Amortization of loan expenses 685 909 1,165 1,775 2,373 635
------- -------- ------- ------- -------- -------
Fixed charges $26,455 $36,403 $38,866 $34,644 $44,644 $12,769
======= ======= ======= ======= ======= =======
CONSOLIDATED RATIO OF EARNINGS TO
FIXED CHARGES 2.99 2.75 2.56 2.68 2.50 2.48
======= ======== ======= ======= ======== =======
EARNINGS:
Income from continuing operations before
extraordinary items(1) $60,830 $71,928 $63,872 $59,219 $66,983 $19,269
Fixed charges 26,455 36,403 38,866 34,644 44,644 12,769
Capitalized interest (7,740) (8,578) (3,079) (841) (170) (258)
Equity (earnings) losses in less than 50%
owned subsidiary (380) 378 (318) (332) (15) (81)
------- -------- ------- ------- -------- -------
Earnings $79,165 $100,131 $99,341 $92,690 $111,442 $31,699
======= ======== ======= ======= ======== =======
COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS:
Interest expense(2) $18,030 $26,916 $34,622 $32,028 $42,101 $11,876
Capitalized interest 7,740 8,578 3,079 841 170 258
Amortization of loan expenses 685 909 1,165 1,775 2,373 635
------- -------- ------- ------- -------- -------
Fixed charges 26,455 36,403 38,866 34,644 44,644 12,769
Preferred stock dividends 4,160 12,814 13,490 13,505 12,468 2,846
------- -------- ------- ------- -------- -------
Combined fixed charges and preferred stock
dividends $30,615 $49,217 $52,356 $48,149 $57,112 $15,615
======= ======= ======= ======= ======= =======
CONSOLIDATED RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS 2.59 2.03 1.90 1.93 1.95 2.03
======= ======= ======= ======= ======= =======
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(1) Effective January 1, 2003, in accordance with FASB Statement No. 145, we reclassified the losses on extinguishments of debt in 2001 and 2002 to income from continuing operations rather than as extraordinary items as previously required under FASB Statement No. 4.
(2) For purposes of this statement, interest expense consists of interest on all indebtedness including amounts allocated to discontinued operations, in accordance with FASB Statement No. 144.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Prospectus Supplement dated June 11, 2003 to the Registration Statement (Form S-3 No. 333-73936) and related Prospectus of Health Care REIT, Inc. for the offering of up to 4,000,000 shares of Series D Cumulative Redeemable Preferred Stock, and to the incorporation by reference therein of our report dated January 17, 2003, with respect to the consolidated financial statements and schedules of Health Care REIT, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2002, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG
Toledo, Ohio
June 9, 2003
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Exhibit 99.1
[Health Care REIT Logo]
F O R I M M E D I A T E R E L E A S E
June 9, 2003
For more information contact:
Ray Braun - (419) 247-2800
Mike Crabtree - (419) 247-2800
HEALTH CARE REIT, INC. ANNOUNCES
SERIES D PREFERRED STOCK OFFERING AND INTENT TO REDEEM
ITS SERIES B PREFERRED STOCK
Toledo, Ohio, June 9, 2003........HEALTH CARE REIT, INC. (NYSE/HCN) announced
today its intent to issue additional preferred shares under a newly designated
Series D Cumulative Redeemable Preferred Stock. The Company also announced that
it intends to use the net proceeds of the sale to redeem all 3,000,000 shares of
its 8.875% Series B Cumulative Redeemable Preferred Stock (NYSE: HCN PrB, CUSIP:
42217K 205) at a redemption price of $25.00 per share plus accrued and unpaid
dividends, as of the redemption date.
Health Care REIT, Inc., with headquarters in Toledo, Ohio, is a real estate investment trust that invests in health care facilities, primarily skilled nursing and assisted living facilities. At March 31, 2003, we had investments in 248 health care facilities in 33 states with 46 operators and had total assets of approximately $1.6 billion. For more information on Health Care REIT, Inc., via facsimile at no cost, dial 1-800-PRO-INFO and enter the company code - HCN. More information is available on the Internet at www.hcreit.com.
This document may contain "forward-looking" statements as defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements concern the possible expansion of our portfolio; the performance of our operators and properties; our ability to enter into agreements with new viable tenants for properties which we take back from financially troubled tenants, if any; our ability to make distributions; our policies and plans regarding investments, financings and other matters; our tax status as a real estate investment trust; our ability to appropriately balance the use of debt and equity; and our ability to access capital markets or other sources of funds. When we use words such as "believe," "expect," "anticipate," or similar expressions, we are making forward-looking statements. Forward-looking statements are not guarantees of future performance and involve risks and uncertainties. Our expected results may not be achieved, and actual results may differ materially from our expectations. This may be a result of various factors, including, but not limited to: the status of the economy; the status of capital markets, including prevailing interest rates; compliance with and changes to regulations and payment policies within the health care industry; changes in financing terms; competition within the health care and senior housing industries; and changes in federal, state and local legislation. Finally, we assume no obligation to update or revise any forward-looking statements or to update the reasons why actual results could differ from those projected in any forward-looking statements.
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Exhibit 99.2
[Health Care REIT Logo]
F O R I M M E D I A T E R E L E A S E
June 11, 2003
For more information contact:
Ray Braun - (419) 247-2800
Mike Crabtree - (419) 247-2800
HEALTH CARE REIT, INC.
PRICES SERIES D PREFERRED STOCK
AND CALLS SERIES B PREFERRED STOCK FOR REDEMPTION
Toledo, Ohio, June 11, 2003........HEALTH CARE REIT, INC. (NYSE/HCN) announced today that it has priced a public offering of 4,000,000 shares of 7.875% Series D Cumulative Redeemable Preferred Stock. The shares have a liquidation value of $25.00 per share. It is anticipated that closing and delivery will occur on or about July 9, 2003. The preferred stock, which has no stated maturity, may be redeemed by the Company at par on or after July 9, 2008.
Deutsche Bank Securities and UBS Investment Bank acted as joint bookrunning managers and Legg Mason Wood Walker, Incorporated, McDonald Investments, Inc., Raymond James, A.G. Edwards & Sons, Inc. and Lehman Brothers served as co-managers.
In addition, the Company announced that a portion of the proceeds from this offering will be used to redeem all 3,000,000 shares of its 8.875% Series B Cumulative Redeemable Preferred Stock (NYSE: HCN PrB, CUSIP: 42217K 205) on July 15, 2003 at a redemption price of $25.00 per share plus accrued and unpaid dividends through July 15, 2003.
The Notice of Redemption and a Letter of Transmittal will be mailed to holders of record of the Series B Cumulative Redeemable Preferred Stock on or about June 13, 2003. Questions related to the Notice of Redemption should be directed to Mellon Investor Services, the redemption agent, at 1-800-777-3674 after June 13, 2003.
Health Care REIT, Inc., with headquarters in Toledo, Ohio, is a real estate investment trust that invests in health care facilities, primarily skilled nursing and assisted living facilities. At March 31, 2003, we had investments in 248 health care facilities in 33 states with 46 operators and had total assets of approximately $1.6 billion. For more information on Health Care REIT, Inc., via facsimile at no cost, dial 1-800-PRO-INFO and enter the company code - HCN. More information is available on the Internet at www.hcreit.com.
This document may contain "forward-looking" statements as defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements concern the possible expansion of our portfolio; the performance of our operators and properties; our ability to enter into agreements with new viable tenants for properties which we take back from financially troubled tenants, if any; our ability to make distributions; our policies and plans regarding investments, financings and other matters; our tax status as
a real estate investment trust; our ability to appropriately balance the
use of debt and equity; and our ability to access capital markets or other
sources of funds. When we use words such as "believe," "expect," "anticipate,"
or similar expressions, we are making forward-looking statements.
Forward-looking statements are not guarantees of future performance and involve
risks and uncertainties. Our expected results may not be achieved, and actual
results may differ materially from our expectations. This may be a result of
various factors, including, but not limited to: the status of the economy; the
status of capital markets, including prevailing interest rates; compliance with
and changes to regulations and payment policies within the health care industry;
changes in financing terms; competition within the health care and senior
housing industries; and changes in federal, state and local legislation.
Finally, we assume no obligation to update or revise any forward-looking
statements or to update the reasons why actual results could differ from those
projected in any forward-looking statements.
#####