Exhibit 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of February 25,
2002, is between Xxxxx & Steers Quality Income Realty Fund, Inc. (the
"PURCHASER") and Health Care REIT, Inc. (the "SELLER").
WHEREAS, the PURCHASER, desires to purchase from SELLER, and SELLER
desires to issue and sell to PURCHASER, 906,125 shares of its Common
Stock, $1.00 par value per share (the "Shares"); and
WHEREAS, the PURCHASER intends to enter into an underwriting agreement
(the "Underwriting Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and certain underwriters named therein
(collectively, the "Underwriters") with respect to the issue and sale by the
PURCHASER and the purchase by the Underwriters of common shares of the PURCHASER
in an amount as specified therein, such proceeds being sufficient to consummate
the transactions contemplated by this Agreement (the "Financing").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions hereof, the
PURCHASER hereby agrees to purchase from SELLER, and SELLER agrees to issue and
sell to PURCHASER, the Shares at a price per share of $27.59 for an aggregate
purchase price of $24,999,989 (the "Purchase Price").
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The PURCHASER
represents and warrants that:
(a) DUE AUTHORIZATION. The PURCHASER is duly authorized to purchase
the Shares. This Agreement has been duly authorized, executed and
delivered by the PURCHASER and constitutes a legal, valid and binding
agreement of the PURCHASER, enforceable against the PURCHASER in
accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) PROSPECTUS AND PROSPECTUS SUPPLEMENT. The PURCHASER has received
a copy of SELLER's Prospectus dated November 21, 2001 and Prospectus
Supplement dated February 25, 2002 (collectively, the "Prospectus").
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(c) NOT A PARTY IN INTEREST; DISQUALIFIED PERSON. With respect to
SELLER, PURCHASER is not a "party in interest" as such phrase is used
in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" as such phrase is used in the
Internal Revenue Code of 1986, as amended ("Code").
(d) NOT A PROHIBITED TRANSACTION. The purchase of the Shares from
SELLER will not give rise to a nonexempt "prohibited transaction" under
ERISA or the Code.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents and
warrants that:
(a) DUE AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by SELLER and constitutes a legal, valid and
binding agreement of SELLER, enforceable against SELLER in accordance
with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) ORGANIZATION AND AUTHORITY. SELLER has been duly organized and
is validly existing in good standing under the laws of Delaware, with
full power and authority to own or lease and occupy its properties and
conduct its business as described in the Prospectus.
(c) ISSUANCE OF THE SHARES. The Shares have been duly and validly
authorized and, when issued and delivered pursuant to this Agreement,
will be fully paid and nonassessable and will be listed, subject to
notice of issuance, on the New York Stock Exchange effective as of the
Closing (as defined in Paragraph 5 of this Agreement).
(d) ABSENCE OF CONFLICTS. The execution, delivery and performance of
this Agreement and the consummation of transactions contemplated herein
do not and will not result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the SELLER.
4. CONDITIONS TO OBLIGATIONS OF THE PARTIES. The obligations of the
parties hereto to effect the transactions contemplated by this Agreement shall
be subject to the satisfaction or waiver at or prior to the Closing Time of the
following conditions:
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(a) each of the representations and warranties of the parties hereto
shall be true and correct in all respects;
(b) the PURCHASER shall have received the proceeds of the Financing
on terms that are consistent with the Underwriting Agreement; and
(c) at Closing (as defined below), the PURCHASER shall have received
the favorable opinion of counsel to the SELLER and a certificate of the
officers of the SELLER, dated as of the Closing, in form and substance
reasonably satisfactory to the PURCHASER.
5. CLOSING. The transactions contemplated hereby shall be consummated
on February 28, 2002, or such other time as shall be agreed upon by the
PURCHASER and the SELLER (such time and date of payment and delivery being
herein called the "Closing"). At the Closing, SELLER shall cause its transfer
agent to deposit the Shares with the Depositary Trust Company, which shall
deliver the Shares to a custodian on behalf of the PURCHASER. Upon such
delivery, the PURCHASER shall wire transfer to an account designated by SELLER
immediately available funds in the amount of the Purchase Price for the Shares.
6. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only in a writing that is executed by each of the parties hereto.
8. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
HEALTH CARE REIT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board, Chief Executive
Officer and President
XXXXX & STEERS QUALITY INCOME REALTY FUND, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Chairman
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