Exhibit 1.1
HEALTH CARE PROPERTY INVESTORS, INC.
MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
AMENDMENT NO. 1
TO THE
DISTRIBUTION AGREEMENT DATED SEPTEMBER 9, 1993
December 21, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281-1310
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Ladies and Gentlemen:
Reference is made to the Distribution Agreement dated September 9, 1993
(the "Distribution Agreement") between Health Care Property Investors, Inc.,
a Maryland corporation (the "Company"), and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, with respect to the issuance and sale by
the Company of its Medium-Term Notes described therein. The parties hereto
acknowledge that (i) this Amendment No. 1 ("Amendment No. 1") shall relate only
to the Company's Medium-Term Notes that are issued, or as to which offers to
purchase are accepted by the Company, or as to which potential investors to
purchase the Medium-Term Notes are contacted or solicited by the Agents (as
defined below), on or after the date hereof; and (ii) the Company's Medium-Term
Notes that have been issued and sold, or as to which offers to purchase have
been accepted by the Company, prior to the date hereof shall not be affected
by this Amendment No. 1, but shall instead continue to be governed by the
Distribution Agreement. Terms not otherwise defined herein shall have the
meanings ascribed to them in the Distribution Agreement.
The purpose of this Amendment No. 1 is to add Goldman, Sachs & Co.
("Goldman, Sachs") as a party to the Distribution Agreement and as an Agent (as
defined below) with respect to the issuance and sale by the Company of its
Medium-Term Notes.
With respect to the Medium-Term Notes issuable pursuant to this Amendment
No. 1, references in the Distribution Agreement to the "Agreement" shall be
deemed to mean the Distribution Agreement as amended by this Amendment No. 1,
and references therein to the date of the Agreement or the date hereof shall
be deemed to be to the date of this Amendment No. 1 thereto (except that the
references to "the date hereof" contained in Sections 5(a) and 5(c) of the
Agreement shall mean the date of the Distribution Agreement).
The Distribution Agreement is hereby amended by the parties thereto as
follows:
1. THE NAMES AND ADDRESSES OF THE AGENTS ON THE FIRST PAGE OF THE
DISTRIBUTION AGREEMENT ARE DELETED AND REPLACED WITH THE NAMES AND ADDRESSES OF
THE AGENTS AS THEY APPEAR ON THE FIRST PAGE OF THIS AMENDMENT NO. 1.
2. THE FIRST INTRODUCTORY PARAGRAPH ON PAGE 1 OF THE DISTIRUBTION
AGREEMENT IS DELETED AND REPLACED WITH THE FOLLOWING:
Health Care Property Investors, Inc., a Maryland corporation
(the "Company"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Goldman, Sachs &
Co. (each an "Agent", and collectively the "Agents") with respect to
the issue and sale by the Company of its Medium-Term Notes described
herein (the "Notes"). The Notes are to be issued pursuant to an
indenture (the "Indenture", which term as used herein includes any
instrument establishing the form and terms of the Notes) dated as of
September 1, 1993 between the Company and The Bank of New York, as
trustee (the "Trustee").
UNLESS OTHERWISE SPECIFICED IN THIS AMENDMENT NO. 1, ALL REFERENCES IN THE
DISTRIBUTION AGREEMENT TO "AGENT" SHALL BE DEEMED TO REFER, MUTATIS MUTANDIS,
TO AN AGENTOR TO THE AGENTS, COLLECTIVELY, AS THE CONTEXT REQUIRES.
3. THE DOLLAR AMOUNT IN SECOND INTRODUCTORY PARAGRAPH ON PAGE 1 OF
THE DISTRIBUTION AGREEMENT IS DELETED AND REPLACED WITH $54,000,000.
4. REFERENCE IS HEREBY MADE TO THE PROCEDURES (AS DEFINED IN SECTION
3(C) ON PAGE 10 OF THE DISTRIBUTION AGREEMENT). UNLESS OTHERWISE SPECIFIED IN
THE PROCEDURES, ALL REFERENCES IN THE PROCEDURES TO "AGENT" SHALL BE DEEMED TO
REFER, MUTATIS MUTANDIS, TO AN AGENT OR TO THE AGENTS, COLLECTIVELY, AS THE
CONTEXT REQUIRES. THE ADDRESS FOR GOLDMAN, SACHS & CO., AS AGENT, FOR PURPOSES
OF THE PROCEDURES PART I, THE SECTIONS ENTITLED "PREPARATION OF PRICING
SUPPLEMENT" AND "SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT" AND PART
III, THE SECTION ENTITLED "SETTLEMENT PROCEDURES", IS SET FORTH IN ANNEX A TO
THIS AMENDMENT NO. 1 AND SHALL BE DEEMED TO BE INCLUDED IN THE PROCEDURES. SUCH
ADDRESS SHALL APPLY UNTIL FURTHER NOTICE IS GIVEN IN ACCORDANCE WITH THE
PROCEDURES. THE COMPANY SHALL PROMPTLY PROVIDE A COPY OF THIS AMENDMENT NO. 1
AND SUCH ANNEX A TO THE TRUSTEE AND THE CALCULATION AGENT, WHICH ANNEX A THE
TRUSTEE AND THE CALCULATION AGENT MAY APPEND TO THE PROCEDURES AND TREAT AS A
PART THEREOF.
THE DATE OF THE PROCEDURES SHALL BE DEEMED, FOR PURPOSES OF THIS
AMENDMENT NO. 1, TO BE THE DATE OF THIS AMENDMENT NO. 1.
5. SECTIONS 8 AND 9 BEGINNING ON PAGE 25 OF THE DISTRIBUTION
AGREEMENT ARE DELETED AND REPLACED WITH THE FOLLOWING:
SECTION 8. Indemnification.
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(a) Indemnification of the Agents. The Company agrees to
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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 required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Agents), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by either of the Agents expressly for use in the Registration
Statement (or any amendment thereto), or made in reliance upon the
Trustee's Statement of Eligibility under the 1939 Act filed as an exhibit
to the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to
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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
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notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 9. Contribution.
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In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section
8 hereof is for any reason held to be unavailable to or insufficient
to hold harmless the indemnified parties although applicable in
accordance with its terms, the Company and the Agents shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the
Company and the Agents, as incurred, in such proportions so that each
Agent is severally responsible for that portion represented by the
percentage that the total commissions and underwriting discounts
received by such Agent to the date of such liability bears to the total
sales price from the sale of Notes sold to or through such Agent to the
date of such liability, and the Company is responsible for the balance;
PROVIDED, HOWEVER, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Agent within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution
as such Agent, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
6. SECTION 13 BEGINNING ON PAGE 30 OF THE DISTRIBUTION AGREEMENT
IS DELETED AND REPLACED WITH THE FOLLOWING:
SECTION 13. Notices.
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Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered
by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified below.
If to the Company:
Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Attention: Kenneth B. Roath,
President and Chief Executive Officer
Fax: (310) 473-1990
With a copy to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071-8763
Attention: Pamela B. Kelly, Esq.
Fax: (213) 891-8763
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Credit Control, Medium-Term Notes
Fax: (212) 357-8680
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.
The obligations of Goldman, Sachs to purchase Notes as principal and
to solicit offers to purchase Notes as an agent of the Company, and the
obligations of any purchasers of the Notes sold through Goldman, Sachs as an
agent, will be further subject to the receipt of the following documents, in
form and substance satisfactory to Goldman, Sachs, delivered in connection with
the execution and delivery of this Amendment No. 1 to the Distribution
Agreement:
(i) Letter, dated the date of this Amendment
No. 1, of Latham & Watkins, counsel to the Company, to Goldman, Sachs
to the effect that Goldman, Sachs may rely, as an addressee, upon their
most recent legal opinion delivered pursuant to Section 7(c) of the
Distribution Agreement, as of the date of such opinion (PROVIDED, that
such reliance letter shall annex thereto the underlying opinion
delivered by Latham & Watkins pursuant to Sections 5(a)(1) and 5(a)(4)
of the Distribution Agreement);
(ii) Letter, dated the date of this Amendment
No. 1, of Latham & Watkins, tax counsel to the Company, to Goldman,
Sachs to the effect that Goldman, Sachs may rely, as an addressee, upon
their most recent legal opinion delivered pursuant to Section 7(c) of
the Distribution Agreement (insofar as it relates to their legal
opinion delivered pursuant to the last paragraph of Section 5(a)(1) the
Distribution Agreement), as of the date of such opinion;
(iii) Letter, dated the date of this Amendment
No. 1, of Brown & Wood, counsel to the Agents, to Goldman, Sachs to the
effect that Goldman, Sachs may rely, as an addressee, upon their legal
opinion delivered pursuant to Sections 5(a)(3) and 5(a)(4) of the
Distribution Agreement, as of the date of such opinion; and
(iv) Letter, dated the date of this Amendment
No. 1, of Arthur Andersen & Co., independent public accountants with
respect to the Company, to Goldman, Sachs to the effect that Goldman,
Sachs may rely, as an addressee, upon (A) their comfort letter
delivered pursuant to Section 5(c) of the Distribution Agreement and
(B) each of their comfort letters delivered pursuant to Section 7(d)
of the Distribution Agreement for the quarterly and annual periods from
and including September 30, 1993; in each case as of the date of such
comfort letters.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase Notes as agents of the Company, and the obligations
of any purchasers of the Notes sold through the Agents as agents, will be
further subject to the receipt of the following documents, delivered in
connection with the execution and delivery of this Amendment No. 1 to the
Distribution Agreement:
(i) Legal opinion, in form and substance
satisfactory to the Agents, dated the date of this Amendment No. 1,
from Latham & Watkins, counsel to the Company, to the effect that this
Amendment No. 1 has been duly authorized, executed and delivered by the
Company;
(ii) Legal opinion, in form and substance
satisfactory to the Agents, dated the date of this Amendment No. 1,
from Brown & Wood, counsel to the Agents, to the effect that this
Amendment No. 1 has been duly authorized, executed and delivered by the
Company (this opinion may be included in the letter delivered from
Brown & Wood pursuant to the preceding paragraph);
(iii) Legal opinion, in form and substance
satisfactory to counsel to the Company and counsel to the Agents, dated
the date of this Amendment No. 1, from Ballard Spahr Andrews &
Ingersoll, special Maryland corporate counsel to the Company, addressed
to Latham & Watkins and Brown & Wood (i) in the form set forth in
Section 5(a)(4) of the Distribution Agreement and (ii) to the effect
that this Amendment No. 1 has been duly authorized, executed and
delivered by the Company;
(iv) Legal opinion, dated the date of this
Amendment No. 1, of Edward J. Henning, Senior Legal Counsel and
Secretary of the Company in the form set forth in Section 5(a)(2) of
the Distribution Agreement; and
(v) Officers' Certificate, dated the date of this
Amendment No. 1, in the form set forth in Section 5(b) of the
Distribution Agreement.
Subsequent to the date of this Amendment No. 1, all documents
periodically delivered by the Company pursuant to Sections 7(b), 7(c) and 7(d)
of the Distribution Agreement shall be addressed to the Agents.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Agents.
Very truly yours,
Health Care Property Investors, Inc.
By: _______________________________________________
Title: ____________________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: __________________________________________________________
Title: _______________________________________________________
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(Goldman, Sachs & Co.)
Annex A
to Amendment No. 1 to the
Distribution Agreement Dated September 9, 1993
HEALTH CARE PROPERTY INVESTORS, INC.
MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
For purposes of the Procedures Part I, the sections entitled
"Preparation of Pricing Supplement" and "Suspension of Solicitation; Amendment
or Supplement" and Part III, the section entitled "Settlement Procedures", the
following address for Goldman, Sachs & Co. shall apply until further notice is
given in accordance with the Procedures:
Goldman, Sachs & Co.
Credit Department Credit Control-Medium Term Notes
85 Broad Street, 27th Floor
New York, N.Y. 10004
Telephone: (212) 902-3711
Fax: (212) 357-8680
The date of the Procedures shall be deemed, for purposes of Amendment
No. 1 to the Distribution Agreement, to be the date of such Amendment No. 1 to
the Distribution Agreement. Unless otherwise specified in the Procedures, all
references in the Procedures to "Agent" shall be deemed to refer, MUTATIS
MUTANDIS, to an Agent or to the Agents, collectively, as the context requires.