1,250,000 Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
------------------
TABLE OF CONTENTS
Page
----
Section 1. Representations and Warranties..................................... -3-
(i) Compliance with Registration Requirements...................... -3-
(ii) Incorporated Documents......................................... -3-
(iii) Independent Accountants........................................ -4-
(iv) Financial Statements........................................... -4-
(v) No Material Adverse Change in Business......................... -4-
(vi) Good Standing of the Company................................... -5-
(vii) Good Standing of Subsidiaries.................................. -5-
(viii) REIT Status.................................................... -5-
(ix) Capitalization................................................. -5-
(x) Absence of Defaults and Conflicts.............................. -6-
(xi) Absence of Proceedings......................................... -6-
(xii) Absence of Further Requirements................................ -7-
(xiii) Authorization of Purchase Agreement............................ -7-
(xiv) Title to Property.............................................. -7-
(xv) Investment Company Act......................................... -7-
Section 2. Sale and Delivery to Underwriters; Closing......................... -8-
Section 3. Covenants of the Company........................................... -9-
(a) Compliance with Securities Regulations and Commission Requests.. -9-
(b) Filing of Amendments............................................ -9-
(c) Delivery of Registration Statements............................. -10-
(d) Delivery of Prospectuses........................................ -10-
(e) Continued Compliance with Securities Laws....................... -10-
(f) Blue Sky Qualifications......................................... -10-
(g) Earnings Statement.............................................. -11-
(h) Use of Proceeds................................................. -11-
(i) Preparation of Prospectus Supplement............................ -11-
(j) Reporting Requirements.......................................... -11-
(k) Lock-up Period.................................................. -11-
Section 4. Payment of Expenses................................................ -12-
Section 5. Conditions of Underwriters' Obligations............................ -12-
(a) Effectiveness of Registration Statement......................... -12-
(b) Opinions........................................................ -12-
(c) Officer's Certificate........................................... -17-
(d) Accountant's Comfort Letter..................................... -18-
(e) Bring-down Comfort Letter....................................... -18-
(f) Listing......................................................... -18-
(h) Additional Documents............................................ -18-
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(i) Over-allotment Option........................................... -18-
Section 6. Indemnification.................................................... -20-
(a) Indemnification of Underwriters................................. -20-
(b) Indemnification of Company, Directors and Officers.............. -21-
(c) Actions Against Parties; Notification........................... -21-
(d) Settlement without Consent if Failure to Reimburse.............. -22-
(e) ▇▇▇▇▇........................................................... -22-
Section 7. Contribution.................................................... -22-
Section 8. Representations, Warranties and Agreements to Survive Delivery.. -23-
Section 9. Termination of Agreement........................................ -23-
Section 10. Default by One or More of the Underwriters...................... -24-
Section 11. Notices......................................................... -25-
Section 12. Parties......................................................... -25-
Section 13. Governing Law and Time.......................................... -25-
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1,250,000 Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
------------------
December 10, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BT Alex. ▇▇▇▇▇ Incorporated
EVEREN Securities, Inc.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), BT ▇▇▇▇. ▇▇▇▇▇ Incorporated and EVEREN
Securities, Inc. (collectively, the "Underwriters"), which term shall also
include any Underwriter substituted as hereinafter provided in Section 10), for
whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as a representative (in such capacity, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall hereinafter be referred to as the "Representative"), with respect
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to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $1.00 per share, of the Company ("Common Stock") set forth in Schedule
A hereto, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 187,500 additional shares of Common Stock to
cover over-allotments. The aforesaid 1,250,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the shares of Common Stock subject to the option described in Section 2(b)
hereof (the "Option Securities") are collectively hereinafter called the
"Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29485) and a related
preliminary prospectus for the registration under the Securities Act of 1933, as
amended (the "1933 Act") of Common Stock, including the Securities, preferred
stock, par value $1.00 per share, and debt securities (collectively, the
"Registered Securities"), which registration statement has been declared
effective by the Commission and copies of which have heretofore been delivered
to you. Such Registration Statement, in the form in which it was declared
effective, as amended through the date hereof, including all documents
incorporated or deemed to be incorporated by reference therein through the date
hereof, is hereinafter referred to as the "Original Registration Statement".
Any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") is
herein referred to as the "Rule 462(b) Registration Statement". The Company
proposes to file with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations the Prospectus Supplement (as defined in Section 3(i) hereof)
relating to the Securities and the prospectus dated September 19, 1997 (the
"Base Prospectus") relating to the Registered Securities, and has previously
advised you of all further information (financial and other) with respect to the
Company set forth therein. The Base Prospectus together with the Prospectus
Supplement, in their respective forms on the date hereof (being the forms in
which they are to be filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations), including all documents incorporated or deemed to be
incorporated by reference therein through the date hereof, are hereinafter
referred to as, collectively, the "Prospectus", except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by the
Company for use in connection with the offering and sale of the Securities which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement 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 or prospectus supplement, as the case may be, from and after
the time it is first provided to the Underwriters for such use. Unless the
context otherwise requires, all references in this Agreement to documents,
financial statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") after the date of this Agreement which is or is
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deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company represents and
------------------------------
warrants to each Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") and as of the Closing Time referred to
in Section 2 as follows:
(i) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act and the 1933 Act
Regulations. Each of the Original Registration Statement and any Rule
462(b) Registration Statement and the Base Prospectus, at the respective
times the Original Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and as
of the Representation Date, complied and comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
(including Rule 415(a) of the 1933 Act Regulations), and did not and as of
the Representation Date do 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,
at the Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company for
use in connection with the offering of the Securities which differs from
the Prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations, in which case at the time it is first provided to the
Underwriters for such use) and at the Closing Time referred to in Section 2
hereof, does not and will not include 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 (i) 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 any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement or the Prospectus or the information contained in
any Statement of Eligibility and Qualification of a trustee under the Trust
Indenture Act of 1939, as amended (the "1939 Act") filed as an exhibit to
the Registration Statement (a "Form T-1"). For purposes of this Section
1(a), all references to the Registration Statement, any post-effective
amendments thereto and the Prospectus shall be deemed to include, without
limitation, any electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system ("▇▇▇▇▇").
(ii) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934
-3-
Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together and with the other information
in the Prospectus, at the respective times the Registration Statement and
any amendments thereto became effective, at the Representation Date and at
Closing Time, did not, do 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 made, not misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) 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 at the dates indicated and the
results of their operations for the periods specified; and, except as
otherwise 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 or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; the pro forma financial statements and the related notes thereto
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to 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.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise 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, (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,
and (C) except for regular quarterly dividends on the Common Stock, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
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(vi) Good Standing of the Company. 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; 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 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 the Company 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 and its subsidiaries considered as one enterprise
in such state.
(vii) Good Standing of 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 organized and is validly existing as a
corporation or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its organization, has power and authority as a
corporation or partnership, as the case may be, to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or partnership, as the case
may be, 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;
all of the issued and outstanding capital stock of each such corporate
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;
and all of the issued and outstanding partnership interests of each such
subsidiary which is a partnership have been duly authorized (if applicable)
and validly issued and are fully paid and non-assessable and (except for
other partnership interests described in the Prospectus) are owned by the
Company, directly or through corporate subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) REIT Status. The Company has at all times operated in such
-----------
manner as to qualify as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code"), and intends to continue to
operate in such manner.
(ix) Capitalization. The authorized capital stock of the Company
--------------
is as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus); the shares of issued
Common Stock have been duly authorized and validly
-5-
issued and are fully paid and non-assessable; the Company has the requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and the Securities have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock conforms
to all statements relating thereto contained in the Prospectus and such
descriptions conform to the rights set forth in the instruments defining
the same; the issuance of the Securities is not subject to preemptive
rights or similar rights; and, after giving effect to the sale of the
Securities and the sale of any other of the Registered Securities to be
issued prior to the delivery of the Securities, the aggregate amount of
Securities which have been issued and sold by the Company will not exceed
the aggregate amount of theretofore unsold Registered Securities.
(x) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of its charter or bylaws 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 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 of its
subsidiaries is subject and in which the violation or 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; and the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
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 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 the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
charter or bylaws of the Company or any law, administrative regulation or
administrative or court order or decree.
(xi) Absence of Proceedings. 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 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 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 transaction contemplated hereby; all
pending legal or governmental proceedings to which the
-6-
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 or
incorporated by reference 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 or
incorporated by reference as exhibits to, or incorporated by reference in,
the Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xii) Absence of Further Requirements. No authorization,
-------------------------------
approval, 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
offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) Authorization of Purchase Agreement. This Agreement has
-----------------------------------
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriters, will be a valid and legally
binding agreement of the Company.
(xiv) Title to Property. 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 stated or incorporated by reference in the
Prospectus or such as would not materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
the Company and its subsidiaries have 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 otherwise described in the Prospectus, (A) that the
Company and its subsidiaries have the foregoing title to such real property
and interests in real property, and (B) that 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 have no
material adverse effect on the value of such real properties and interests
in relation to the Company and its subsidiaries considered as one
enterprise; and no material real property and buildings are held under
lease by the Company (other than long-term ground leases).
(xv) Investment Company Act. The Company is not required to be
----------------------
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
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Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at $36.3025 per share, the
number of Initial Securities set forth in Schedule A hereto opposite the name of
such Underwriter, plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional 187,500 shares of Common Stock at the price per
share set forth in paragraph (a) above. The option hereby granted will expire
30 days after the Representation Date, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Securities
upon notice by the Underwriters to the Company setting forth the number of
Option Securities as to which the Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
the Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Underwriters and the Company. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the Underwriters in their discretion shall make
to eliminate any sales or purchases of fractional Securities.
(c) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
place as shall be agreed upon by the Underwriters and the Company, at 7:00 A.M.,
Los Angeles time, on December 16, 1997 (unless postponed in accordance with the
provisions of Section 10 hereof), or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are purchased
by the Underwriters, payment of the purchase price for and delivery of
certificates for such Option Securities shall be made at the above-mentioned
office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, or at such other place as shall be mutually agreed
upon by the Underwriters and the Company, on each Date of Delivery as specified
in the notice from the Underwriters to the Company. Payment shall be made to
the Company by wire transfer of immediately available funds to a bank account
designated by the Company against delivery to the Underwriters of certificates
for the Securities to be purchased by the Underwriters. Certificates for the
Initial Securities and the Option Securities shall be in such denominations and
registered in such names as the
-8-
Underwriters may request in writing at least one business day before Closing
Time or the relevant Date of Delivery, as the case may be. It is understood
that each Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters for the Securities to be purchased by such
Underwriter or Underwriters, but such payment shall not relieve such Underwriter
or Underwriters from its obligations hereunder. The certificates for the
Initial Securities and the Option Securities, if any, will be made available for
examination and packaging by the Underwriters not later than 10:00 A.M. on the
last business day prior to Closing Time or the relevant Date of Delivery, as the
case may be in New York, New York.
Section 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Company will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment
to the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any amendment to the
Registration Statement or amendment or supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act during any period when the
Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or 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 proceeding 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 Securities 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 by the
Commission of any stop order and, if any such stop order is issued, to
obtain the lifting thereof at the earliest possible moment. The Company
will provide the Underwriters with copies of the form of Prospectus, in
such number as the Underwriters may reasonably request, and file or
transmit for filing with the Commission such Prospectus in accordance with
Rule 424(b) of the 1933 Act Regulations by the close of business in New
York on the second business day immediately succeeding the date hereof.
(b) Filing of Amendments. The Company will give the Underwriters
--------------------
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use by the Underwriters in connection with
the offering of the Securities that differs from the prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act
-9-
Regulations, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations or any abbreviated term
sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will
furnish the Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company will deliver to
-----------------------------------
the Underwriters as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith and documents incorporated or deemed to be incorporated by
reference therein) as the Underwriters may reasonably request and will also
deliver to the Underwriters as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated or deemed to be incorporated by reference therein
but without exhibits filed therewith) as the Underwriters may reasonably
request.
(d) Delivery of Prospectuses. The Company will furnish to the
------------------------
Underwriters, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) Continued Compliance with Securities Laws. If any event shall
-----------------------------------------
occur as a result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Company, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, the
Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus 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
existing at the time it is delivered to a purchaser, not misleading, and
the Company will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(f) Blue Sky Qualifications. The Company will endeavor, in
-----------------------
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate;
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. In each
jurisdiction in which the Securities shall have been so qualified, the
Company will file such statements and reports as may be required by laws of
such jurisdiction to continue such qualification in effect for as long as
may be required for the distribution of the Securities.
-10-
(g) Earnings Statement. The Company will make generally available to
------------------
its 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 of the 1933 Act Regulations)
covering the twelve month period beginning not later than the first day of
the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(h) Use of Proceeds. The Company will use the net proceeds received
---------------
by it from the sale of the Securities in the manner to be specified in the
Prospectus Supplement under "Use of Proceeds".
(i) Preparation of Prospectus Supplement. Immediately following the
------------------------------------
execution of this Agreement, the Company will prepare a prospectus
supplement, dated the date hereof (the "Prospectus Supplement"), containing
the terms of the Securities, the plan of distribution thereof and such
other information as may be required by the 1933 Act or the 1933 Act
Regulations or as the Underwriters and the Company deem appropriate, and
will file or transmit for filing with the Commission in accordance with
Rule 424(b) of the 1933 Act Regulations copies of the Prospectus (including
such Prospectus Supplement).
(j) Reporting Requirements. The Company, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(k) Lock-up Period. During a period of 90 days from the date of this
--------------
Agreement, the Company will not without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
or file any registration statement under the 1933 Act with respect to the
foregoing or (ii) enter into any swap or other agreement or transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequences of ownership of Common Stock, whether any such swap,
agreement, or other transaction described in (i) or (ii) above is to be
settled by delivery of Common Stock, other securities, cash or otherwise,
except for (A) Common Stock issued pursuant to this Agreement, (B) Common
Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company, or (C) Common Stock issued
or securities exchangeable for shares of Common Stock in connection with
the acquisition of properties or interests therein (provided that the
recipients of such Common Stock or securities referred to in this clause
(C) agree in writing to lock-up provisions substantially identical to those
contained in the Lock-Up Agreement attached hereto as Exhibit A).
-11-
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fee and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Supplemental Blue Sky Survey, (v) the
printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus and preliminary prospectus supplement
and of the Prospectus and Prospectus Supplement and any amendments or
supplements thereto, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vi) the printing and
delivery to the Underwriters of copies of the Supplemental Blue Sky Survey and
(vii) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
If this Agreement is cancelled or terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fee and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time no stop
---------------------------------------
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission. The Prospectus (including the Prospectus
Supplement referred to in Section 3(i) hereof) shall have been filed or
transmitted for filing with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
Closing Time the Company shall have provided evidence satisfactory to the
Underwriters of such timely filing or transmittal.
(b) Opinions. At Closing Time the Underwriters shall have received:
--------
(1) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, special counsel for the Company, in form and scope
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Registration Statement (including any Rule
462(b) Registration Statement) has been declared effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the
-12-
1933 Act and no proceedings therefor have been initiated or
threatened by the Commission.
(ii) The Registration Statement (including any Rule
462(b) Registration Statement) at the time it became effective
and at the Closing 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 (iii) below,
or the financial statements, schedules and other financial and
statistical data and related schedules 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.
(iii) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules 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
requirements of 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.
(iv) 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.
(v) No authorization, approval, consent, decree or order
of any Federal or California 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 the Securities hereunder, except such as may have
been obtained or rendered, as the case may be, or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws (including real estate syndication laws).
(vi) The issue and sale of the Securities and the
compliance by the Company with the provisions of this Agreement
and the consummation of the transactions contemplated herein 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) at
-13-
the date hereof; nor will such action, 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(b)(1), and no opinion under
state securities laws (including real estate syndication laws) or
any antifraud laws.
(vii) The Company is not required to be registered
under the ▇▇▇▇ ▇▇▇.
(2) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, special counsel for the Company, in form and scope
satisfactory to counsel for the Underwriters and subject to customary
assumptions, limitations and exceptions acceptable to counsel for the
Underwriters, to the effect that:
(i) the Company was organized in conformity with the
requirements for qualification as a real estate investment trust
under the Code commencing with its taxable year ending December
31, 1985, 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; and
(ii) the information in the Prospectus under the
captions "Certain Federal Income Tax Considerations to the
Company" and "Certain Federal Income Tax Considerations to
Holders of Common Stock," insofar as such statements constitute
matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by them and
is accurate in all material respects.
(3) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Maryland counsel for the Company, in form
and scope satisfactory to counsel for the Underwriters, to the effect
that:
(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 the corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(iii) The authorized capital stock of the Company is as
set forth in the Prospectus under "Capitalization."
-14-
(iv) The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable. The
issuance of such Securities is not subject to preemptive rights
under the charter or bylaws of the Company or the Maryland
General Corporation Law.
(v) 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 the corporate
power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus. All of
the issued and outstanding shares of capital stock of such
subsidiary have been duly authorized and validly issued, and are
fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vii) The Common Stock conforms to the description
thereof contained in the Prospectus and the form of certificate
used to evidence the Securities is in due and proper form.
(viii) The issuance and sale of the Securities by the
Company and the compliance by the Company with the provisions of
this Agreement and the consummation of the transactions
contemplated thereby, will not result in any violation of the
provisions of the charter or bylaws of the Company
(ix) No authorization, approval, consent, decree or
order of any court or governmental authority or agency is
required under the Maryland General Corporation Law for the
consummation by the Company of the transactions contemplated by
this Agreement or in connection with the sale of the Securities
hereunder, except such as may have been obtained or rendered, as
the case may be, or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws.
In rendering its opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll shall
state that ▇▇▇▇▇ & ▇▇▇▇ llp, in rendering its opinion pursuant to
Section 5(b)(5), may rely upon such opinion as to matters arising
under the laws of the State of Maryland.
-15-
(4) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, General Counsel of the Company, in form and scope
satisfactory to counsel for the Underwriters, 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 of 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 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 in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(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.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization "
-16-
(except for subsequent issuances, if any, pursuant to
reservations, agreements, dividend reinvestment plans or employee
or director stock plans referred to in the Prospectus), and the
shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and non-
assessable.
(5) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ &
Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in (i) and (ii) of subsection (b)(1) and (i), (iv), (vi) and
(vii) of subsection (b)(3) of this Section. In rendering such
opinion, ▇▇▇▇▇ & ▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & Ingersoll, rendered pursuant to Section 5(b)(3) as to
matters arising under the laws of the State of Maryland.
(6) In giving their opinions required by subsections (b)(1) and
(b)(5), respectively, of this Section, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇ &
Wood LLP shall each additionally state that nothing has come to their
----
attention that would cause them to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in connection
with the offering of the Securities which differs from the Prospectus
on file at the Commission at the Representation Date, in which case at
the time it is first provided to the Underwriters for such use) or at
Closing Time, included or includes 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; it being understood that
such counsel shall express no opinion with respect to the financial
statements, schedules and other financial and statistical data in the
Registration Statement or the Prospectus. 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, and (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.
(c) Officer's Certificate. At Closing Time there shall not have been,
---------------------
since the date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, 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, and the Underwriters shall have received a
certificate of the President or a Vice President of the Company and the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations
-17-
and warranties in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (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 Closing
Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or, to the best knowledge and information of such
officer, threatened by the Commission. As used in this Section 5(c), the
term "Prospectus" means the Prospectus in the form first used to confirm
sales of the Securities.
(d) Accountant's Comfort Letter. At the time of execution of this
---------------------------
Agreement, the Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter, dated such date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants "comfort letters" to underwriters with respect to
financial statements and financial information included and incorporated by
reference in the Registration Statement and the Prospectus (including,
without limitation, the pro forma financial statements, if any) and
substantially in the same form as the draft letter previously delivered to
and approved by the Underwriters.
(e) Bring-down Comfort Letter. At Closing Time the Underwriters shall
-------------------------
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
specified date referred to therein shall be a date not more than three
business days prior to Closing Time.
(f) Listing. At Closing Time the Securities shall have been duly
-------
listed, subject to notice of issuance, on the New York Stock Exchange.
(g) Lock-up Agreements. The Representatives shall have received an
------------------
agreement substantially in the form of Exhibit A hereto signed by the
persons listed on Schedule B hereto, dated as of the date of this
Agreement.
(h) Additional Documents. At Closing Time and each Date of Delivery,
--------------------
if any, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities 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 the Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(i) Over-allotment Option. In the event the Underwriters exercise
---------------------
their option provided in Section 2 hereof to purchase all or any portion of
the Option Securities, the representations and warranties of the Company
contained herein and the
-18-
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriters shall
have received:
(1) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(1) and 5(b)(6) hereof.
(2) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming their opinion
delivered at Closing Time pursuant to Section 5(b)(2) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll,
Maryland counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities and otherwise to the same effect as the
opinion required by Sections 5(b)(3) hereof.
(4) The favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
of the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming his opinion
delivered at Closing Time pursuant to Section 5(b)(4) hereof.
(5) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(5) and 5(b)(6) hereof.
(6) A certificate of the President or a Vice President of the
Company and the chief financial or chief accounting officer of the
Company, dated such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
(7) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(e) hereof except that the
"specified date" in the letter furnished pursuant to this subsection
shall be a date not more than three business days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notifying the Company at any time at or prior to Closing Time,
and such termination shall be without
-19-
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 1, 4,
6, 7 and 8 shall remain in effect.
Section 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and
-------------------------------
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 any 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 any preliminary
prospectus, any preliminary prospectus supplement or 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 any 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, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating,
preparing or defending against any litigation, or any 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 (A) 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 any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus,
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto), and (B) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus or
preliminary prospectus supplement, this indemnity agreement shall not inure to
the benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter within the meaning of Section ▇▇ ▇▇
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇▇) to the extent that any such loss, liability, claim, damage or
expense of such Underwriter or any person controlling such Underwriter results
from the fact that such Underwriter sold Securities to a person to whom there
was not sent or given by such Underwriter or on such Underwriter's behalf at or
prior to the written confirmation of the sale of such Securities to such person,
a copy of the Prospectus (as then amended or supplemented), if required by law
to have been so delivered, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, liability, claim, damage
or expense.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
--------------------------------------------------
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 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 any
preliminary prospectus, preliminary prospectus supplement or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus, preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
-------------------------------------
give written notice as promptly as reasonably practicable 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 hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
-------- -------
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation,
-21-
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
--------------------------------------------------
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) ▇▇▇▇▇. For purposes of this Section 6, all references to the
-----
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement or the Prospectus, or any amendment or supplement to any of the
foregoing, shall be deemed to include, without limitation, any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇.
Section 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus (or, if Rule 434 is used,
the corresponding location on the Term Sheet) bear to the aggregate public
offering price of the Securities as set forth on such cover (or corresponding
location on the Term Sheet, as the case may be).
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material
-22-
fact relates to information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters 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 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, 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 or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
---------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement, or
contained 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 the Underwriters or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
Section 9. Termination of Agreement. (a) The Underwriters may terminate
------------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise,
-23-
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) if there has occurred any outbreak of
hostilities or other calamity or crisis or change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which on the financial markets of the
United States is such as to make it, in the judgement of the Underwriters,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the securities of the Company has been
suspended by the Commission, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ National Market
has 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, the NASD or any other governmental
authority, or if a banking moratorium has been declared by either federal, New
York or California authorities. As used in this Section 9(a), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If any Underwriter
------------------------------------------
shall fail at Closing Time to purchase the Securities which it is obligated to
purchase hereunder (the "Defaulted Securities"), the Representative shall have
the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall have not completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery, shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
-24-
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriters or the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to them at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III,
Managing Director, and notices to the Company shall be directed to it at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, President and Chief Executive Officer, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq. at ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters 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 Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof 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 Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 13. Governing Law and Time. This Agreement 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. Unless stated otherwise,
all specified times of day refer to New York City time.
-25-
If the foregoing is in accordance with your 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 Underwriters and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice-President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
EVEREN SECURITIES, INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Authorized Signatory
-26-
SCHEDULE A
Number of
Underwriters Securities
---------------------------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated................... 418,000
BT Alex. ▇▇▇▇▇ Incorporated............. 416,000
EVEREN Securities, Inc.................. 416,000
---------
Total.......................... 1,250,000
=========
-27-
SCHEDULE B
1. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
2. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇
4. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
5. ▇▇▇▇ ▇. Colony
6. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
7. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
8. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
9. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
10. ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-28-
Exhibit A
December __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BT Alex. ▇▇▇▇▇ Incorporated
EVEREN Securities Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Health Care Property Investors, Inc.
----------------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder and an executive officer and/or director of
Health Care Property Investors, Inc., a Maryland corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇"), BT ▇▇▇▇. ▇▇▇▇▇ Incorporated EVEREN Securities, Inc. propose to enter
into an Purchase Agreement (the "Purchase Agreement") with the Company providing
for the public offering of shares (the "Securities") of the Company's common
stock, par value $1.00 per share (the "Common Stock"). In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder
and an executive officer and/or director of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Purchase Agreement that, during a period of 90 days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) offer, pledge (other than a pledge to a lending
institution as collateral or security for a bona fide loan), sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any opinion, right or warrant to purchase or otherwise dispose of
or transfer, directly or indirectly, any shares of the Company's Common Stock or
any securities convertible into or exchangeable or
A-1
exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise.
Very truly yours,
Signature:
-----------------------
Print Name:
-----------------------
A-2