Exhibit 1.1
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland Corporation)
Medium-Term Notes, Series C
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
. ., 199.
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Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and NationsBanc
Capital Markets Inc. (each an "Agent" and, collectively, the "Agents") with
respect to the issue and sale by the Company of its Medium-Term Notes described
herein (the "Notes"). The Notes are to be issued pursuant to an indenture (the
"Indenture", which term as used herein includes any instrument establishing the
form and terms of the Notes) dated as of September 1, 1993 between the Company
and The Bank of New York, as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale of
up to $ aggregate initial offering price of Notes to or through the
Agents pursuant to the terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or distributed through the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more of the Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent) in which case the
applicable Agent will act as agent of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-66676) for the
registration of $__________ aggregate offering price of common stock, par value
$1.00 per share, preferred stock, par value $1.00 per share and debt securities,
including the Notes, under the Securities Act of 1933, as amended (the "1933
Act") and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplements relating to the
Notes, including all documents incorporated therein by reference, as from time
to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus and/or
prospectus supplement relating to the Notes shall be provided to the Agent by
the Company for use in connection with the offering of the Notes, whether or not
such revised prospectus and/or prospectus supplement relating to the Notes is
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus and/or
prospectus supplement relating to the Notes from and after the time it is first
provided to the Agents for such use. Notwithstanding the foregoing, for
purposes of this Agreement any prospectus supplement prepared with respect to
the offering of a series of debt securities other than the Notes shall not be
deemed to have supplemented the Prospectus.
SECTION 1. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein and
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subject to the reservation by the Company of the right to appoint, upon . days'
prior written notice to the Agents, additional persons as "Agents" hereunder
(provided that each such additional person agrees to be bound by all of the
terms of this Agreement (including Schedule A)), the Company hereby agrees that
Notes will be sold exclusively to or through the Agents. Each Agent is
authorized to engage the services of any other broker or dealer in connection
with the offer or sale of the Notes purchased by such Agent as principal for
resale to others but is not authorized to appoint sub-agents. In connection
with sales by the Agents of Notes purchased by the Agents as principal to other
brokers or dealers, the Agents may allot any portion of the discount they have
received in connection with such purchase from the Company to such brokers or
dealers. The Company agrees that during the period the Agents are acting as the
Company's agents hereunder, the Company will not contact or solicit potential
investors to purchase the Notes. Notwithstanding anything to the contrary
contained herein, the Company may accept offers to purchase Notes through an
agent other than the Agents if (i) the Company shall not have solicited such
offers, (ii) the Company and such agent shall have entered into an agreement
with the same terms as this Agreement (including Schedule A) and (iii) the
Company shall have notified the Agents promptly after the
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acceptance of any such offer and shall have provided the Agents with a copy of
such agreement in written form promptly following the execution thereof.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
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of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
(c) Purchases as Principal. No Agent shall have any obligation to purchase
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Notes from the Company as principal, but each Agent may agree from time to time
to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the Company,
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such Agent acting solely as agent for the Company and not as principal will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes solicited by such
Agent on an agency basis, other than those offers rejected by such Agent. Such
Agent shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject any proposed purchase of the Notes, in whole or in
part, and any such rejection shall not be deemed a breach of the Company's
agreement contained herein. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company. Such Agent
shall not have any liability to the Company in the event any such agency
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to such Agent any commission to which it would
be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any Notes purchased by
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an Agent shall be purchased, and any Notes the placement of which an Agent
arranges shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether from such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal being hereafter referred to as a "Settlement
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Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the Commission any
document incorporated by reference into the Prospectus (each of the times
referenced above being referred to herein as a "Representation Date") as
follows:
(i) Due Incorporation and Qualification. The Company (A) has been
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duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; (B) has the requisite corporate power and
authority to execute and deliver this Agreement, the Indenture and the
Notes and to perform its obligations hereunder and thereunder; (C) has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes the valid and binding agreement of the Company; (D) is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; (E) is in
substantial compliance with all laws, ordinances and regulations of each
state in which it owns properties that are material to the properties and
business of the Company is such state; and (F) has at all times operated in
such manner as to qualify as a "real estate investment trust" under the
Internal Revenue Code of 1986 (the "Code") and intends to continue to
operate in such manner.
(ii) Subsidiaries. Each subsidiary of the Company which is a
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significant subsidiary (each, a "Significant Subsidiary") as defined in
Rule 405 of Regulation C of the 1933 Act Regulations has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the
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rules and regulations of the Commission promulgated thereunder (the "1939
Act Regulations"). The Registration Statement, at the time it became
effective, did not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or any Annual Report on Form
10-K is filed by the Company with the Commission and as of each
Representation Date, will not, 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. The Prospectus,
as of the date hereof does not, and as of each Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
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subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement that constitutes the Statement of
Eligibility of the Trustee under the 1939 Act filed as an exhibit to the
Registration Statement (the "Form T-1").
(iv) Incorporated Documents. The documents incorporated by reference
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into the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
or are made, not misleading.
(v) Accountants. The accountants who certified the financial
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statements and supporting schedules included or incorporated by reference
in the Registration Statement and Prospectus are independent public
accountants within the meaning of the 1933 Act and the 1933 Act
Regulations.
(vi) Financial Statements. The financial statements and any
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supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations for the periods specified; and,
except as stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein; and the Company's ratios of
earnings to fixed charges included in the Prospectus under the caption
"Ratio of Earnings to Fixed Charges" and in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission.
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(vii) Authorization and Validity of this Agreement, the Indenture
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and the Notes. This Agreement has been duly authorized, executed and
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delivered by the Company and, upon execution and delivery by the Agents,
will be a valid and legally binding agreement of the Company; the Indenture
has been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Trustee, will be a valid and legally binding
obligation of the Company enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights of creditors or by general equity principles; the Notes have
been duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or agreed upon pursuant
to the provisions of this Agreement, the Notes will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors or by general equity principles; the
Notes and the Indenture will be substantially in the form heretofore
delivered to the Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each holder of
Notes will be entitled to the benefits of the Indenture.
(viii) Material Changes or Material Transactions. Since the
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respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business and
(b) there have been no transactions entered into by the Company or any of
its subsidiaries other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise.
(ix) No Defaults. Neither the Company nor any of its subsidiaries is
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in violation of its charter or in material default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of them or their
properties may be bound, which default might result in a material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; the execution and delivery of this Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate
action and will not conflict with or constitute a material breach of, or
material default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound
or to which any of
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the property or assets of the Company or any such subsidiary is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree;
(x) No Authorization, Approval or Consent Required. No consent,
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approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the sale
of Notes hereunder, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities ("Blue Sky") laws.
(xi) Legal Proceedings; Contracts. There is no action, suit or
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proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, or might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the consummation of
this Agreement or the Indenture or any transaction contemplated hereby or
thereby; all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(xii) Good Title. The Company has good title to all real property or
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interests in real property owned by it, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Registration Statement or such as do not materially adversely affect the
value of such property and interests and do not interfere with the use made
and proposed to be made of such property and interests by the Company; the
Company has obtained satisfactory confirmations (consisting of policies of
title insurance or commitments or binders therefor or opinions of counsel
based upon the examination of abstracts) confirming, except as is otherwise
described in the Registration Statement, (A) that the Company has the
foregoing title to such real property and interests in real property, and
(B) that the instruments securing the Company's real estate mortgage loans
create valid liens upon the real properties described in such instruments
enjoying the priorities intended, subject only to exceptions to title which
have no materially adverse effect on the value of such real properties and
interests; and no material real property and buildings are held under lease
by the Company.
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(xiii) Investment Company Act. The Company is not required to be
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registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xiv) Cuba Disclosure. The Company has complied with, and is and
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will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any director or
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officer of the Company and delivered to an Agent or to counsel for the Agents in
connection with an offering of Notes through an Agent as agent or the sale of
Notes to an Agent as principal shall be deemed a representation and warranty by
the Company to the Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
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(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
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Company, Notes shall be purchased by the Agents as principal. Such purchases
shall be made in accordance with terms agreed upon by an Agent and the Company
(which terms shall be agreed upon orally, with written confirmation prepared by
such Agent and mailed to the Company). An Agent's commitment to purchase Notes
as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each such purchase of
Notes by an Agent shall be made by such Agent with the intention of reselling
them as soon as practicable, in the sole judgment of such Agent. Each purchase
of Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. An Agent may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as principal and may
allow any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers. At the time of each purchase of
Notes by an Agent as principal, such Agent shall specify the requirements for
the stand-off agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof, respectively.
(b) Solicitations as Agent. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through an Agent, as agent,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, such Agent will
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forthwith suspend solicitation of purchases from the Company until such time as
the Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and such Agent, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto.
(c) Administrative Procedures. The aggregate principal amount, purchase
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price, interest rate or formula, maturity date and other terms of the Notes (as
applicable) specified in Exhibit A hereto shall be agreed upon by the Company
and the Agents and set forth in a pricing supplement to the Prospectus to be
prepared in connection with each sale of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 or any larger amount that is an integral multiple of
$1,000. Administrative procedures with respect to the sale of Notes shall be
agreed upon from time to time by the Agents, the Company and the Trustee (the
"Procedures"). The Agents and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
(d) Delivery of Closing Documents. The documents required to be delivered
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by Section 5 hereof shall be delivered at the offices of Brown & Wood, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the date hereof, or at such
other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
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The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
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immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose, and (vi) of the issuance by
any state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of the Notes
under state securities or Blue Sky laws or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
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advance notice of its intention to file or prepare any additional registration
statement with
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respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for a change in the interest
rates, maturity or price of Notes), whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with
copies of any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such amendment or
supplement or other documents in a form to which the Agents or counsel for the
Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
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will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agent may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
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respect to any Notes to be sold through or to an Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by such Agent and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
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provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes the Agents may then
own as principal, and the Company will promptly amend the Registration Statement
and the Prospectus, whether by filing documents pursuant to the 1934 Act, the
1933 Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements and the Company shall furnish to the Agents as many copies of the
Registration Statement and the Prospectus, as each may then be amended or
supplemented, as the Agents shall reasonably require.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
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otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be
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released to the general public interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed in
writing, and shall prior to the delivery of the Prospectus to any purchaser of
the Notes purchasing after the date on which such financial information is
released to the general public, by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
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otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall, prior to the delivery of the Prospectus
to any purchaser of the Notes purchasing after the date on which such financial
information is released to the general public, cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available to its
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security holders as soon as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule 158)
of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
11
(j) 1934 Act Filings. The Company, during the period when the Prospectus
----------------
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and to the
extent such documents are incorporated by reference in the Prospectus, when read
together with the other information in or incorporated by reference into the
Prospectus, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(k) Stand-Off Agreement. If specified by an Agent in connection with a
-------------------
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, directly or
indirectly, offer or sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Notes that are to be sold pursuant to
such agreement and commercial paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be required
---------------------------------
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agent pursuant to a request from
the Company and (ii) no Agent shall then hold any Notes purchased as principal
pursuant hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or an Agent shall subsequently purchase
Notes from the Company as principal.
(m) Use of Proceeds. The Company will use the net proceeds received by it
---------------
from the sale from time to time of Notes in the manner specified in the
Prospectus under "Use of Proceeds."
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of one or more Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as an agent of the Company, and the
obligations of any purchasers of the Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
--------------
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
--------------------------
special counsel to the Company, to the effect that:
12
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus.
(iii) Texas HCP, Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; all of the issued and
outstanding shares of capital stock of such subsidiary have been duly
and validly authorized and issued, and are fully paid and non-
assessable, and, to the best of such counsel's knowledge and
information are owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery thereof by the Trustee) is a legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
(vi) The Notes are in due and proper form and have been duly
authorized by the Company and, when authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will have been duly
executed and delivered by, and will constitute valid and binding
obligations of, the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights of creditors or by general
equity principles and certain additional customary exceptions, and
each holder of Notes will be entitled to the benefits of the
Indenture.
(vii) The Notes and the Indenture conform in all material
respects to the respective descriptions thereof contained in the
Prospectus.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Registration Statement has been declared effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no
proceedings therefor have been initiated or threatened by the
Commission.
13
(x) The Registration Statement at the time it became effective
and at the Representation Date, appeared on its face to comply as to
form in all material respects with the requirements for registration
statements on Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood that such counsel need express no
opinion with respect to documents incorporated by reference therein
except as set forth in paragraph (xiv) below, the Form T-1 or the
financial statements, schedules and other financial and statistical
data included or incorporated by reference in the Registration
Statement. In passing upon the compliance as to form of the
Registration Statement, such counsel may assume that the statements
made and incorporated by reference therein are true, correct and
complete.
(xi) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are required
to be disclosed in the Prospectus.
(xii) The issue and the sale of the Securities and the
compliance by the Company with the provisions of this Agreement and
the Indenture, and the consummation of the transactions therein
contemplated, will not result in a breach or violation of any material
term or provision of, or constitute a default under the Material
Agreements (as defined in such opinion); nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or, to the best of such counsel's knowledge, result in any
material violation of any statute or any order, rule or regulation
applicable to the Company of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties, except that such counsel need express no opinion
under federal securities laws except as expressly otherwise provided
in this Section 5(a)(1), and no opinion under state securities laws
(including real estate syndication laws) or any antifraud laws.
(xiii) No approval, authorization, consent, order or decree of
any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
Agreement or in connection with the sale of Notes hereunder, except
such as may have been obtained or rendered, as the case may be, or as
may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act or state securities laws.
(xiv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the financial
statements and other financial and statistical data and related
schedules included or incorporated by reference therein, as to which
no opinion need be rendered) at the time it was filed with the
Commission, appeared on its face to comply as to form in all material
respects with the 1934 Act and the 1934 Act Regulations. In passing
upon compliance as to form of such documents, such counsel may assume
that the statements made therein are true, correct and complete.
14
(xv) The statements set forth in the Prospectus Supplement under
the caption "Federal Income Tax Consequences", insofar as such
statements constitute matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, are accurate in all
material respects.
(xvi) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall also deliver to the Agents a favorable opinion to
the effect that the Company has been organized in conformity with the
requirements for qualification as a real estate investment trust and 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, in
form and substance satisfactory to counsel for the Agents and subject to
customary assumptions, limitations and exceptions acceptable to counsel for the
Agents.
(2) Opinion of Company Counsel. The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
--------------------------
General Counsel of the Company, to the effect that:
(i) To the best of such counsel's knowledge and information, the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) To the best of such counsel's knowledge and information,
each Significant Subsidiary is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which its ownership or lease of substantial properties or the conduct
of its business requires such qualification, except where the failure
to so qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(iii) To the best of such counsel's knowledge and information,
no material default exists in the due performance or observance by the
Company or any of its subsidiaries of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument described or referred
to in the Registration Statement or filed as an exhibit thereto or
incorporated by reference therein which would have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
15
(iv) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto and the descriptions
thereof or references thereto are correct.
(3) Opinion of Counsel to the Agents. The opinion of ▇▇▇▇▇ & Wood
--------------------------------
llp, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i) and (iv) to (x), inclusive,
above.
(4) In giving their opinions required by subsection (a)(1) and (a)(3)
of this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and Brown & Wood llp shall each
additionally state that nothing has come to their attention that would lead
them to believe that the Registration Statement, at the time it became
effective or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at the
time such amendment became effective or at the time of the most recent such
filing, as the case may be, or at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or supplemented
at the date hereof, or (if such opinion is being delivered in connection
with the purchase of Notes by an Agent as principal pursuant to Section
7(c) hereof) at the date of any agreement by such Agent to purchase Notes
as principal and at the Settlement Date with respect thereto, as the case
may be, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In giving their opinions, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ llp may rely, to the extent recited therein,
(A) as to all matters of fact, upon certificates and written statements of
officers of the Company, (B) as to the qualification and good standing of
the Company and each Significant Subsidiary to do business in any state or
jurisdiction, upon certificates of appropriate government officials and (C)
as to matters involving the laws of the State of Maryland, upon the opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, in form and substance satisfactory to
counsel for the Agents.
(b) Officer's Certificate. At the date hereof, the Agents shall have
---------------------
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any agreement by an Agent to purchase Notes as principal, there has
not been any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
16
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
--------------
letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and its subsidiaries examined by
them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim
financial statements of the Company and its indicated subsidiaries, a
reading of the minute books of the Company and such subsidiaries since
the end of the most recent fiscal year with respect to which an audit
report has been issued, inquiries of and discussions with certain
officials of the Company and such subsidiaries responsible for
financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus and the latest
available interim unaudited financial statements of the Company and
its subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that: (A) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not fairly presented
in conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet
of the Company and its
17
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet to a specified date not more than five days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or net income of the Company and its subsidiaries, except in each such
case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date,
---------------
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of an
Agent, any applicable agreement by such Agent to purchase Notes as principal)
may be terminated by the applicable Agent or Agents by notice to the Company at
any time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery in Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
18
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
-------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes (whether to such Agent as principal or
through such Agent as agent), and each delivery of Notes to such Agent (whether
to such Agent as principal or through such Agent as agent), shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser or
its agent, or to such Agent, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the establishment of or
a change in the interest rates, maturity or price of the Notes or similar
changes, and, unless the Agents shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities other
than the Notes under the Registration Statement, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
by an Agent as principal) the Company sells Notes to an Agent as principal or
(iv) if the Company issues and sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished to
the Agents forthwith a certificate dated the date of filing with the Commission
of such supplement or document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form satisfactory to the Agents to
the effect that the statements contained in the certificate referred to in
Section 5(b) hereof which were last furnished to the Agents are true and correct
at the time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
19
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the establishment of or
a change in the interest rates, maturity or price of the Notes or similar
changes or solely for the inclusion of additional financial information, and,
unless the Agents shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities other than the
Notes under the Registration Statement or any Quarterly Report on Form 10-Q,
unless the Agents shall otherwise specify), (iii) (if required in connection
with the purchase of Notes by an Agent as principal) the Company sells Notes to
an Agent as principal or (iv) if the Company issues and sells Notes in a form
not previously certified to the Agents by the Company, the Company shall furnish
or cause to be furnished forthwith to the Agents and to counsel to the Agents
the written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, General Counsel of the Company, or other counsel satisfactory to the
Agents dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form and substance satisfactory to the Agents, of the
same tenor as the opinions referred to in Sections 5(a)(1) and 5(a)(2) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information, or (ii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to an Agent
as principal, the Company shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. (or other
independent accountants of the Company satisfactory to the Agents) forthwith to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document filed with the Commission, or the date of such sale, as
the case may be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement or
-------- -------
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. (or such other
acceptable independent accountants) may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement unless
any other information
20
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Agent), as incurred,
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto), or made in reliance upon the Trustee's Statement of Eligibility under
the 1939 Act filed as an exhibit to the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to indemnify
--------------------------
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of
21
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Agents expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give prompt notice to each
-------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless the indemnified
parties although applicable in accordance with its terms, the Company and the
applicable Agent(s) shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the applicable Agent(s), as incurred, in
such proportions that the applicable Agent(s) is responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by the applicable Agent(s) to the date of such liability
bears to the total sales price from the sale of Notes sold to or through the
applicable Agent(s) to the date of such liability, and the Company is
responsible for the balance; provided, however, that no person guilty of
-------- -------
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Agent, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
22
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and counsel, of
the Trustee and its counsel, and of any Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents incurred
in connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto (including all
documents incorporated by reference therein), and the delivery by the Agents of
the Prospectus and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) Any advertising and other out-of-pocket expenses of the Agents incurred
with the approval of the Company;
(k) The cost of providing any CUSIP or other identification numbers for the
Notes; and
(l) The fees and expenses of any Depositary (as defined in the Indenture)
and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or
23
any controlling person of any Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes and the
termination of this Agreement.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any agreement
-----------------------------
hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or an Agent, as to
itself, upon the giving of ten days' written notice of such termination to the
other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
applicable Agent(s) may terminate any agreement hereunder by such Agent(s) to
purchase Notes as principal, immediately upon notice to the Company, at any time
prior to the Settlement Date relating thereto (i) if there has been, since the
date of such agreement or since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent(s), impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium shall
have been declared by either Federal, California or New York authorities, or
(iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of any applicable
principal purchase shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Company, or (v) if there shall have come to such Agent(s) attention any facts
that would cause such Agent(s) to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at the time of such delivery, not misleading.
(c) General. In the event of any such termination, neither party will have
-------
any liability to the other party hereto, except that (i) the Agents shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the
24
covenant set forth in Section 4(h) hereof, the provisions of Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Health Care Property Investors, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
[Other Agents Addresses]
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
25
SECTION 14. Governing Law; Forum.
--------------------
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of California
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
26
If the foregoing is in accordance with the Agents understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By:_________________________________
Title:
Accepted:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:___________________________________
Title:
27
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents and
the Company in connection with each sale of Notes:
Principal Amount: $_______
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Denominations:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c)of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
1
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate percentage set forth
below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to 30 years 0.750%
1