EXHIBIT 1.1
NATIONWIDE HEALTH PROPERTIES, INC.
Medium-Term Notes, Series D, Due Nine Months or More
From Date of Issue
DISTRIBUTION AGREEMENT
February 18, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Ladies and Gentlemen:
Nationwide Health Properties, Inc., a Maryland corporation (the
"Company"), confirms its agreement (the "Agreement") with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
(each an "Agent" and collectively the "Agents") with respect to the issue and
sale by the Company of its Medium-Term Notes, Series D, described herein (the
"Notes"). The Notes are to be issued pursuant to an indenture (as the same may
be amended or restated from time to time, the "Indenture"), dated as of January
13, 1999, between the Company and Chase Manhattan Bank and Trust Company,
National Association as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale
of up to $500,000,000 (or its equivalent based on the applicable exchange rate
at the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) aggregate
initial offering price of Notes by the Company directly or through one or both
of the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time, pursuant to an Officers'
Certificate delivered to the
Trustee pursuant to Section 301 of the Indenture (with an original copy thereof
delivered to the Agents), reduce the authorized aggregate initial offering price
of the Notes (but not below the aggregate initial offering price of Notes
previously issued under the Indenture) or authorize the issuance of additional
Notes and that such additional Notes may be distributed directly by the Company
or through or to one or both of 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 directly
to purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the related Agent or Agents) to an Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-70707) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933 (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 (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 (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 shall be provided to an
Agent by the Company for use in connection with the offering of the Notes which
is not 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
from and after the time it is first provided to an Agent for such use.
SECTION 1. Appointment as Agents.
---------------------
(a) Appointment. Subject to the terms and conditions stated herein, the
-----------
Company hereby appoints the Agents as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that
whenever the Company determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Terms Agreement (as hereafter
defined) relating to each such sale in accordance with the provisions of Section
3(b) hereof if requested by the applicable Agent. 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 and will
not engage any other party to assist in the placement of the Notes. The Agents
are authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes.
2
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
--------------------------------------------------------
instructions from the Company, the Agents will use their reasonable efforts
receipt of to solicit purchases of such principal amount of Notes as the Company
and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation 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 initial offering
price of Notes registered pursuant to the Registration Statement. No Agent will
have responsibility for maintaining records with respect to the aggregate
initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale under the Registration Statement. Each Agent will
communicate to the Company, orally or in writing, the offer to purchase Notes,
other than those offers rejected by such Agent. Each 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. The parties
hereto agree that no Agent shall be under any obligation to solicit purchases of
Notes upon the occurrence and continuation of any event described in Section
12(b) hereof, irrespective of the date such event occurs.
(c) Solicitations as Agents; Purchases as Principal. In soliciting
-----------------------------------------------
purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, the Agents shall act solely as agents for the
Company and not as principals. Each 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. No
Agent shall have any liability to the Company in the event any such purchase is
not consummated for any reason. No Agent shall have any obligation to purchase
Notes from the Company as principal, but either 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 pursuant to a Terms Agreement in accordance with Section
3(b) hereof if requested by the applicable Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
--------
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, 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.
------------------------------
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of the acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or such Agent as
principal), as of the date of the delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
related Agent or Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that 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 Notes or similar changes) or 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 under the Registration
3
Statement other than the Notes) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company has been 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; and the Company 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 would not have a material adverse effect on
the business or financial condition of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
------------
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
would not have a material adverse effect on the business or financial
condition of the Company and its subsidiaries considered as one enterprise;
and all of the issued and outstanding capital stock of each such 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) REIT Qualification. The Company has at all times since
------------------
December 31, 1985 operated in such manner as to qualify as a "real estate
investment trust" ("REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"), and intends to continue to operate in such manner.
(iv) Registration Statement and Prospectus. At the time the
-------------------------------------
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the applicable requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the 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 the applicable 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
4
hereof does not, and as of the applicable 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 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 those parts of the Registration Statement
which constitute the Trustee's Statement of Eligibility and Qualification
under the 1939 Act on Form T-1.
(v) Incorporated Documents. The documents incorporated by reference
----------------------
in the Prospectus, at the time they were filed with the Commission, complied
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 and with the other information in or incorporated by
reference in the Prospectus, did 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 were made, not misleading.
(vi) Accountants. The accountants who certified the financial
-----------
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
(vii) Financial Statements. The financial statements and any
--------------------
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 of the dates indicated and the
consolidated results of their operations for the periods specified; and,
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; and any supporting schedules included
or incorporated by reference in the Registration Statement present fairly
the information required to be stated therein.
(viii) Material Changes or Material Transactions. Since the
-----------------------------------------
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (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
material transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business.
(ix) Authorization, Execution and Delivery of this Agreement. The
-------------------------------------------------------
Company has duly authorized, executed and delivered this Agreement and any
Terms Agreement
5
and each of this Agreement and any such Terms Agreement constitutes the
valid and binding agreement of the Company.
(x) The Indenture. The Indenture has been duly and validly
-------------
authorized, executed and delivered by the Company and assuming it has been
duly and validly authorized, executed and delivered by the Trustee,
constitutes a legally valid and binding obligation of the Company,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equity principles.
(xi) The Notes. The Notes have been duly and validly authorized by
---------
the Company for issuance, offer and sale pursuant to this Agreement and,
when completed as contemplated by the Procedures (as hereinafter defined),
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration set forth
in the Prospectus or pursuant to any Terms Agreement, will constitute
legally valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by general equity principles, and will be entitled to the
benefits of the Indenture; and the Notes and the Indenture conform in all
material respects to all statements relating thereto contained in the
Prospectus.
(xii) No Defaults; Compliance with Laws; Regulatory Approvals.
-------------------------------------------------------
Neither the Company nor any of its Significant Subsidiaries is in default in
the performance or observance of any material 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 may be bound, or to which any of their property or
assets is subject, which default would materially adversely affect the
business or financial condition of the Company and its subsidiaries
considered as one enterprise; neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or bylaws; the execution,
delivery and performance of this Agreement, any Terms Agreement and the
Indenture and the consummation of the transactions contemplated herein and
therein will not conflict with, or constitute a breach of, or 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 Significant
Subsidiaries pursuant to, any material 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 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 bylaws of the Company or, to the best knowledge of the
Company, any law, administrative regulation or administrative or court order
or decree; and no consent, 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, any Terms
Agreement or the Indenture, except such as may be required under
6
the 1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or as may be required by state securities or Blue Sky laws.
(xiii) Legal Proceedings; Contracts. Except as set forth in the
----------------------------
Registration Statement, there is no action, suit or 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 the Company or any
of its subsidiaries which is required to be disclosed in the Registration
Statement or which might in the opinion of the Company result in any
material adverse change in the business or financial condition of the
Company and its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of this Agreement or
any Terms Agreement; all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
its 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.
(xiv) Licenses. The Company owns or possesses or has obtained all
--------
material governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently conducted
where its ownership or lease of substantial properties or the conduct of its
business requires such ownership or possession or the obtaining of such
governmental licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(xv) Rating of the Notes. The Notes are rated at least "Baa2" by
-------------------
▇▇▇▇▇'▇ Investors Service, Inc. and at least "BBB" by Standard & Poor's
Ratings Group.
(xvi) The Company and its subsidiaries have good title to all real
property or interests in real property owned by it or any of them, 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 as reflected in
the Company's financial statements and do not materially interfere with the
use made and proposed to be made of such property and interests by the
Company and its subsidiaries; the instruments securing the Company's and its
subsidiaries' 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 do not materially adversely affect
the value of such real properties and interests as reflected in the
Company's financial statements; and no material real property or buildings
are held under lease by the Company or any of its subsidiaries.
7
(xvii) Investment Company Act. The Company is not required to be
----------------------
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xviii) The Company has reviewed its operations and that of its
subsidiaries and is in the process of reviewing any third parties with which
the Company or any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the Company or
any of its subsidiaries will be affected by the Year 2000 Problem. As a
result of such review to date, the Company has no reason to believe, and
does not believe, that the Year 2000 Problem will have a material adverse
effect on the current or future consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole or result in any material loss or material
interference with the Company's business or operations. The "Year 2000
Problem" as used herein means any significant risk that computer hardware or
software used in the receipt, transmission, processing, manipulation,
storage, retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in the
case of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring prior
to January 1, 2000.
(b) Additional Certifications. Any certificate signed by any director or
-------------------------
officer of the Company and delivered to any Agent or to counsel to the Agents in
connection with an offering of Notes through one or more Agents as agent or the
sale of Notes to one or more Agents as principal shall be deemed a
representation and warranty by the Company to the applicable Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principal.
-----------------------------------------------
(a) Solicitations as Agents. On the basis of the representations and
-----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, when acting as an agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, any such Agent will 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 the related 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.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the related Agent or Agents and
set forth in a pricing
8
supplement to the Prospectus to be prepared following each acceptance by the
Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All Notes sold through
the Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the related Agent or Agents.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
----------------------
shall be made in accordance with the terms contained herein and, if requested by
the applicable Agent, pursuant to a separate agreement which will provide for
the sale of the Notes to, and the purchase and reoffering thereof by, such
Agent. Each such separate agreement (which may be an oral agreement) between an
Agent and the Company is herein referred to as a "Terms Agreement." Unless the
context otherwise requires, each reference contained herein to "this Agreement"
shall be deemed to include any Terms Agreement between the Company and any
Agent. Each such Terms Agreement, whether oral or in writing, shall be with
respect to such information (as applicable) as is specified in Exhibit A hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise 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 Terms Agreement shall
specify the principal amount of Notes to be purchased by the applicable Agent
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes, any provisions relating to rights of,
and default by, purchasers acting together with the applicable Agent in the
reoffering of the Notes, and such other provisions (including further terms of
the Notes) as may be mutually agreed upon. The Agents may utilize a selling or
dealer group in connection with the resale of the Notes purchased. Such Terms
Agreement shall also specify whether or not any of the officer's certificate,
opinions of counsel or comfort letter specified in Sections 7(b), 7(c) and 7(d)
hereof shall be required to be delivered by the Company in connection therewith.
(c) Administrative Procedures. Administrative procedures with respect to
-------------------------
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (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
-----------------------------
by Section 5 hereof shall be delivered at the office of O'Melveny & ▇▇▇▇▇
L.L.P., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
▇▇▇▇ 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.
------------------------
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
------------------------
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
9
to the 1934 Act which will be incorporated by reference in the Prospectus (other
than any Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (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, and (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. 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. Except as otherwise provided in
----------------------------------
subsection (l) of this Section, the Company will give the Agents notice of its
intention to file or prepare any additional registration statement with 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 the establishment of or change in,
the interest rates, maturity or price of Notes or other similar changes),
whether by the filing of documents pursuant to the 1934 Act (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes), 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 in a form to which you or your counsel
shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
-------------------------------------------------------
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 Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) 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
----------------------------------
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents 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) Prospectus Revisions -- Material Changes. Except as otherwise
----------------------------------------
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 reasonable opinion of counsel to the Agents or counsel for
the Company, to further amend or supplement the Prospectus in
10
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 reasonable 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 agents
and to cease sales of any Notes either Agent may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and file with the
Commission such amendment or supplement, 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.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
------------------------------------------------------
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be 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 cause the Registration Statement and the
Prospectus to be amended or supplemented, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, 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
-----------------------------------------------------
otherwise provided in subsection (l) 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 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, by applying the provisions of Rule
-------------------
158 under the 1933 Act, will make generally available to its security holders as
soon as practicable, but not later than 90 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.
11
(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.
(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. Between the date of any Terms Agreement and the
-------------------
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party thereto, directly or
indirectly, sell, offer to sell, contract to sell or otherwise dispose of, or
announce the offering of, any debt securities of the Company, or any security
exchangeable into such debt securities (other than the Notes that are to be sold
pursuant to such Terms Agreement and commercial paper in the ordinary course of
business), except as may otherwise be provided in any such Terms Agreement.
(l) Suspension of Certain Obligations. The Company shall not be required
---------------------------------
to comply with the provisions of subsections (a), (b), (c), (e), (f), (g) or (j)
of this Section or the provisions of Section 7 hereof during any period from the
time (i) the Agents shall have received written notification from the Company to
suspend solicitation of purchases of the Notes in their capacity as agents and
(ii) the earlier of the date on which the Agents shall not then hold any Notes
as principal purchased pursuant to a Terms Agreement and the date which is 30
days (nine months with respect to subsections (e) and (j) of this Section) from
the date on which the Agents shall have received written notice from the Company
to suspend solicitations of purchases of the Notes, to the time the Company
shall determine that solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with any Agent.
(m) Use of Proceeds. The net proceeds from the sale of Notes will be used
---------------
by the Company as described in the Prospectus.
12
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of the Agents to purchase Notes as
principal pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained 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 and their counsel:
(1) Opinion of Company Counsel. The opinion of O'Melveny & ▇▇▇▇▇ L.L.P.,
--------------------------
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own its properties and
assets and to carry on its business as described in the Registration
Statement.
(iii) To the best of such counsel's knowledge, the Company 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 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.
(iv) Nationwide Health Properties Finance Corporation, a
Delaware corporation, has been duly incorporated and is validly
existing in good standing under the laws of the jurisdiction of its
incorporation with corporate power to conduct its business as
currently conducted.
(v) The execution, delivery and performance of this Agreement
and, if applicable, the relevant Terms Agreement, have each been duly
authorized by all necessary corporate action on the part of the
Company, and have each been duly executed and delivered by the
Company.
(vi) The Indenture has been qualified under the 1939 Act.
(vii) The execution, delivery and performance of the Indenture
have been duly authorized by all necessary corporate action on the
part of the
13
Company, the Indenture has been duly executed and delivered by the
Company and constitutes the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally. Such
counsel may state, however, that enforceability of the Indenture is
subject to the effect of general principles of equity including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law.
(viii) The Notes are in forms permitted by the Indenture, have
been duly authorized by all necessary corporate action on the part of
the Company and, when completed as contemplated by the Procedures,
executed and authenticated as specified in the Indenture and delivered
against payment of the purchase price therefor pursuant to this
Agreement as provided in the Prospectus and any Terms Agreement, will
be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally. Such counsel may state,
however, that enforceability of the Notes is subject to the effect of
general principles of equity including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(ix) The Registration Statement has been declared effective
under the 1933 Act and, to their knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued or
threatened by the Commission.
(x) The Registration Statement, on the date it became
effective, appeared on its face to comply in all material respects
with the requirements as to form for registration statements on Form
S-3 under the 1933 Act and the related rules and regulations in effect
at the date of effectiveness, except no opinion need be expressed
concerning the financial statements and other financial information
contained or incorporated by reference therein or the Statement of
Eligibility of the Trustee on Form T-1 filed as an exhibit thereto.
(xi) Each document filed pursuant to the 1934 Act (other than
the financial statements and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) and incorporated by reference in the Prospectus, on the
respective dates they were filed, appeared on their face to comply in
all material respects with the 1934 Act and the 1934 Act Regulations
thereunder in effect at the respective dates of their filing.
(xii) The statements in the Prospectus under the captions
"Description of the Notes", "Description of Debt Securities" and
"United States Taxation", to
14
the extent that they constitute matters of law, summaries of legal
matters or documents, or legal conclusions, have been reviewed by them
and are correct in all material respects.
(xiii) No order, authorization, consent, permit or approval of
any governmental authority is required on the part of the Company for
the consummation of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
securities laws.
(xiv) The Company is not an "investment company" within the
meaning of the 1940 Act.
(xv) 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 Registration Statement, other than
those disclosed therein.
(xvi) To the best of such counsel's knowledge, except as
otherwise stated or incorporated by reference in the Prospectus, the
Company's execution and delivery of and performance of its obligations
under this Agreement, any Terms Agreement and the Indenture do not (A)
conflict with or constitute a breach of, or 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 Significant
Subsidiaries pursuant to any other agreement identified in the Company
Certificate dated as of the date hereof, a copy of which is attached
hereto, provided that the Company complies with the provisions of
Section 9.4(a)(xiii) of the Credit Agreement, dated as of May 20,
1993, as amended, among the Company, ▇▇▇▇▇ Fargo Bank, National
Association, and certain other banks named therein, (B) result in any
violation of the provisions of the charter or bylaws of the Company or
(C) result in any violation of any applicable law, administrative
regulation or administrative or court decree the effect of which would
be material to the Company and its subsidiaries taken as a whole.
(xvii) Such counsel does not know of any contract or other
document required to be described or referred to in the Registration
Statement or to be filed or incorporated by reference as an exhibit
thereto which is not described or referred to therein or filed or
incorporated by reference as an exhibit thereto.
(xviii) Based upon current law, including relevant statutes,
regulations and judicial and administrative precedent (which is
subject to change on a retroactive basis), and subject to all of the
limitations, qualifications, conditions and factual assumptions set
forth herein, the Company has met each of the requirements for
qualification as a REIT for each taxable year commencing with its
taxable year ended December 31, 1994, and if the Company operates
subsequent to December 31, 1998, in the same manner as it has prior to
such date, it will continue to so qualify, provided that the various
requirements for
15
qualification as a REIT are satisfied in those years, including,
without limitation, the requirements relating to its income, assets,
distributions, ownership and administration. However, such counsel may
state that they are unable to opine whether the Company will actually
continue to qualify as a REIT after December 31, 1998, because such
qualification will depend on future transactions and events that
cannot be known at the date of such opinion.
(2) 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), (v) and (vi) through (x),
inclusive, above.
(3) In giving their opinions required by subsection (a)(1) and (a)(2)
of this Section, O'Melveny & ▇▇▇▇▇ L.L.P. and Brown & Wood llp shall each
additionally state that they do not believe that the Registration
Statement, at the time it became effective, and 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 and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference in the
Registration Statement and Prospectus), contains or contained an untrue
statement of a material fact or omits or omitted to state a material fact
required to be stated therein or necessary in order 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 a Terms Agreement pursuant to Section 7(c) hereof) at the date of any
Terms Agreement and at the Settlement Date with respect thereto, as the
case may be, contains or contained an untrue statement of a material fact
or omits or omitted 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. Such counsel may state that they express no view as
to the Statement of Eligibility and Qualification on Form T-1 filed in
connection with the Registration Statement or the financial statements and
other financial data included or incorporated by reference in such
Registration Statement or Prospectus.
(b) Officers' 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 Terms Agreement, 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 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) no
stop order suspending the effectiveness of the Registration Statement has
16
been issued and, to their knowledge, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the date hereof and in form and
substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement Date with
---------------
respect to any Terms Agreement, 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 the
Agent party thereto, any Terms Agreement) may be terminated by any of the Agents
(as to itself only) 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 agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
---------------------------------------------------------
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. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by the
applicable Agent in the performance of its obligations hereunder, the Company
will reimburse such Agent on an equitable basis for its loss of the use of the
funds for the period such funds were credited to the Company's account.
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, and each delivery of Notes to such Agent
pursuant to a Terms Agreement, 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
17
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. Subject to the provisions of
-----------------------------------
Section 4(l) hereof, each time that 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 Notes or similar changes) or 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 under the Registration Statement other than the Notes) or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
such Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished to such Agent 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
such Agent to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which were last furnished to such Agent 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.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions of
-------------------------------------
Section 4(l) hereof, each time that 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 other than by an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) or there is filed with the
Commission any document incorporated by reference into the Prospectus (other
than any Quarterly Report on Form 10-Q or any Current Report on Form 8-K, unless
such Agent shall otherwise reasonably request) or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to such Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent and to counsel to the Agents a written opinion of O'Melveny & ▇▇▇▇▇
L.L.P. or other counsel satisfactory to such Agent 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 such Agent, of the same tenor as the opinions referred to in
Sections 5(a)(1) and (a)(3) 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 opinions; or, in lieu of such opinions, counsel last
furnishing such opinion to such Agent shall
18
furnish such Agent with a letter substantially to the effect that such Agent 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. Subject to the provisions of
--------------------------------------
Section 4(l) hereof, each time that 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 (if required
pursuant to the terms of a Terms Agreement) the Company sells Notes to such
Agent pursuant to a Terms Agreement, the Company shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
or other independent certified public accountants satisfactory to such Agent,
forthwith to furnish such Agent with a letter, 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
such Agent, of the same tenor as the letter referred to in 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 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP or other independent certified public accountants satisfactory to such
Agent, may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information included
therein of an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of such Agent, 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 any 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 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 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
19
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, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Agents),
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 the Prospectus (or any amendment or supplement thereto), and
provided further, however, that the indemnity agreement contained in this
subsection 8(a) shall not inure to the benefit of an Agent with respect to any
loss, liability, claim, damage or expense arising from the sale of Notes by such
Agent to any person if all of the following occur: (x) such Agent has failed to
send or give a copy of the Prospectus (excluding documents incorporated by
reference), as it may then have been amended or supplemented, to that person at
or prior to the time of written confirmation of such sales to such person and
such delivery to such person is required by the 1933 Act; (y) the untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission of a material fact from a previous form of the Prospectus was
corrected in the Prospectus, as then amended or supplemented; and (z) such Agent
shall have been notified as to such amendment or supplement as set forth herein
and the Company shall have delivered copies of the Prospectus, as so amended or
supplemented, to such Agent.
(b) Indemnification of Company. Each Agent agrees, severally and not
--------------------------
jointly, 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 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 such Agent
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 of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this
20
indemnity agreement. An indemnifying party may assume the defense of the
indemnified party by retaining counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party and the indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In 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.
(d) Foreign Currency Judgments. The Company agrees to indemnify each
--------------------------
Agent against any loss incurred by such Agent as a result of any judgment or
order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which such Agent is able
to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
each Agent on the other from the offering of the Notes to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before
21
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
per capita allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, an Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Notes purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The
obligations of each of the Agents under this Section 9 to contribute are several
in proportion to the respective purchases made by or through it to which such
loss, claim, damage or liability (or action in respect thereof) relates and are
not joint.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(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 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
22
disbursements of counsel to 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 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) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (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 or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or 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.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 30 days' written notice of such termination to
the other parties hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement or Other Agreement. (A) An Agent may
---------------------------------------------------
terminate any Terms Agreement, and (B) any purchaser of Notes through an Agent
as agent hereunder may terminate such agreement to purchase Notes, immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the
23
date of such Terms Agreement or agreement to purchase notes 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 the applicable
Agent or such purchaser, as the case may be, impracticable to market the Notes
subject to such Terms Agreement or agreement to purchase Notes or enforce
contracts for the sale of such 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 federal, California or New York authorities or if a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
subject to such Terms Agreement or agreement to purchase Notes are denominated
or payable, 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 Terms Agreement or agreement to purchase Notes shall have been lowered since
that date or if any such rating agency shall have publicly announced since that
date that it has placed any debt securities of the Company on what is commonly
termed a "watch list" for possible downgrading, or (v) if there shall have come
to the attention of the Agent or Agents party to such Terms Agreement or such
purchaser, as the case may be, any facts that would cause such Agent or Agents
or purchaser, as the case may be, to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes subject to such Terms
Agreement or agreement to purchase Notes, contained 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. The Company and the Agents agree that no Agent
shall have any duty or obligation whatsoever to exercise the judgment permitted
under this subsection on behalf of any purchaser of Notes.
(c) General. In the event of any such termination, no party will have any
-------
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased pursuant to a Terms Agreement 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 its agent of the Note
or Notes relating thereto has not occurred, the obligations set forth in Section
5 hereof and 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
(provided, however, that, except as provided in clause (iii) below, the
Company's obligations pursuant to Sections 4 and 7 hereof shall in any event
terminate no later than the date that is 30 days (nine months with respect to
subsections (e) and (j) of Section 4 hereof) after the time of such
termination), and (iii) the covenant set forth in Section 4(h) hereof, the
provisions of
24
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 10, 11 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, by telecopier or by telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Nationwide Health Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Money Market Origination, 27th Floor
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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.
SECTION 14. Governing Law.
-------------
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 New York
applicable to agreements made and to be performed in such State.
25
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.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each of which shall
be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or the provisions hereof.
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
between the Agents and the Company in accordance with its terms.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By:
------------------------------
Name:
Title:
Accepted:
.....................................
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
----------------------------------
Name:
Title:
27
Exhibit A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ___%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period
from _______ to ________.
[ ] Actual/360 for the period from _______ to ________.
[ ] Actual/Actual for the period from _______ to ________.
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] Actual/360 for the period from ______ to _______.
[ ] Actual/Actual for the period from _______ to ________.
[ ] Other:
A-1
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, specification as to the requirements for:
Officers' 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.
A-2
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note by such Agent equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES AMOUNT PRINCIPAL
---------------------- ----------
From 9 months to less than 1 year................................... .125%
From 1 year to less than 18 months.................................. .150%
From 18 months to less than 2 years................................. .200%
From 2 years to less than 3 years................................... .250%
From 3 years to less than 4 years................................... .350%
From 4 years to less than 5 years................................... .450%
From 5 years to less than 6 years................................... .500%
From 6 years to less than 7 years................................... .550%
From 7 years to less than 10 years.................................. .600%
From 10 years to less than 15 years................................. .625%
From 15 years to less than 20 years................................. .700%
From 20 years to 30 years........................................... .750%
From more than 30 years............................................. *
________________________
* As agreed upon by the Company and the applicable Agent at the related time of
sale.