EXHIBIT 1.1
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$200,000,000
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
6 7/8% MandatOry Par Put Remarketed
Securities ("MOPPRS")
due June 8, 2015
PURCHASE AGREEMENT
------------------
"MandatOry Par Put Remarketed Securities" and "MOPPRS" are service marks owned
by Merrill Lynch & Co., Inc.
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TABLE OF CONTENTS
Page
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Section 1. Representations and Warranties................................................ -3-
(i) Compliance with Registration Requirements................................ -3-
(ii) Incorporated Documents................................................... -4-
(iii) Independent Accountants.................................................. -4-
(iv) Financial Statements..................................................... -4-
(v) No Material Adverse Change in Business................................... -5-
(vi) Good Standing of the Company............................................. -5-
(vii) Good Standing of Subsidiaries............................................ -5-
(viii) REIT Status.............................................................. -6-
(ix) Capitalization........................................................... -6-
(x) Absence of Defaults and Conflicts........................................ -6-
(xi) Absence of Proceedings................................................... -7-
(xii) Absence of Further Requirements.......................................... -7-
(xiii) Authorization of Purchase Agreement...................................... -7-
(xiv) Authorization of Remarketing Agreement................................... -7-
(xv) Absence of Default....................................................... -7-
(xvi) Authorization and Description of the Securities and the Indenture........ -8-
(xvii) Title to Property........................................................ -8-
(xviii) Investment Company Act................................................... -8-
(xix) Rating of Securities..................................................... -8-
Section 2. Sale and Delivery to the Underwriter; Closing................................. -9-
Section 3. Covenants of the Company...................................................... -9-
(a) Compliance with Securities Regulations and Commission Requests........... -9-
(b) Filing of Amendments..................................................... -10-
(c) Delivery of Registration Statements...................................... -10-
(d) Delivery of Prospectuses................................................. -10-
(e) Continued Compliance with Securities Laws................................ -10-
(f) Blue Sky Qualifications.................................................. -11-
(g) Earnings Statement....................................................... -11-
(h) Use of Proceeds.......................................................... -11-
(i) Preparation of Prospectus Supplement..................................... -11-
(j) Reporting Requirements................................................... -11-
Section 4. Payment of Expenses........................................................... -12-
Section 5. Conditions of the Underwriters' Obligations................................... -12-
(a) Effectiveness of Registration Statement.................................. -12-
(b) Opinions................................................................. -12-
(c) Officers' Certificate.................................................... -18-
(d) Accountant's Comfort Letter.............................................. -18-
(e) Bring-down Comfort Letter................................................ -19-
(f) Additional Documents..................................................... -19-
Section 6. Indemnification............................................................... -19-
(a) Indemnification of the Underwriters...................................... -19-
(b) Indemnification of Company, Directors and Officers....................... -20-
(c) Actions Against Parties; Notification.................................... -20-
(d) Settlement without Consent if Failure to Reimburse....................... -21-
-i-
(e) EDGAR.................................................................... -21-
Section 7. Contribution.................................................................. -21-
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................................... -23-
Section 11. Notices...................................................................... -24-
Section 12. Parties...................................................................... -24-
Section 13. Governing Law and Time....................................................... -24-
Schedule A
-ii-
$200,000,000
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
6 7/8% MandatOry Par Put Remarketed
Securities ("MOPPRS")
due June 8, 2015
PURCHASE AGREEMENT
------------------
June 3, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
NationsBanc Montgomery Securities LLC
Salomon Brothers Inc
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the "Company"),
confirms its agreement with each of Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), NationsBanc Montgomery Securities LLC and
Salomon Brothers Inc (collectively, the "Underwriters", which term shall also
include any Underwriter substituted as hereinafter provided in Section 10), for
whom Merrill Lynch is acting as representative (in such capacity, Merrill Lynch
shall hereinafter be referred to as the "Representative"), with respect to the
sale by the Company and the purchase by the Underwriters, acting severally and
not jointly, of the respective principal amounts set forth in Schedule A hereto
of $200,000,000 aggregate principal amount of the Company's 6 7/8% MandatOry Put
Par Remarketed Securities due June 8, 2015 (the "Securities"). The Securities
are to be issued pursuant to an indenture dated as of September 1, 1993 (the
"Indenture", which term as used herein includes any
"MandatOry Par Put Remarketed Securities_" and "MOPPRS_" are service marks owned
by Merrill Lynch & Co., Inc.
-1-
instrument establishing the form and terms of the Securities) between the
Company and The Bank of New York, as trustee (the "Trustee").
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, par value $1.00 per share, preferred
stock, par value $1.00 per share, and debt securities, including the 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. The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). 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 Original Registration
Statement, together with any Rule 462(b) Registration Statement, is hereinafter
referred to as the "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 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.
-2-
Representations and Warranties. (a) The Company represents and warrants
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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:
Compliance with Registration Requirements. The Company meets the
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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), the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939 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. No stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. 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
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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 Merrill Lynch expressly for use in the
Registration Statement or the Prospectus or the information contained in
the Statement of Eligibility and Qualification of the Trustee under the
1939 Act filed as an exhibit to the Registration Statement (the "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 ("EDGAR").
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 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.
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.
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 selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus; 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.
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, par
value $1.00 per share ("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.
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.
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.
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.
Capitalization. The authorized capital stock of the Company is
--------------
as set forth in the Company's Consolidated Balance Sheets as of December
31, 1997 included in the Company's annual report on Form 10-K for the year
ended December 31, 1997 (the "Form 10-K") and incorporated by reference in
the Prospectus (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus and except for the 698,752 shares of Common Stock issued and
sold by the Company in a public offering consummated on April 29, 1998);
the shares of issued Common Stock have been duly authorized and validly
issued and are fully paid and non-assessable; the Company has the requisite
corporate power and authority to
execute and deliver this Agreement and the Securities and to perform its
obligations hereunder and thereunder; 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.
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.
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 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.
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.
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.
Authorization of Remarketing Agreement. The Remarketing
--------------------------------------
Agreement (the "Remarketing Agreement"), dated as of June 8, 1998, between
the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Remarketing Dealer") has been duly authorized, executed and delivered by
the Company and, upon execution and delivery by the Remarketing Dealer,
will be a valid and legally binding agreement of the Company.
Absence of Default. No material default or event of default with
------------------
respect to any indebtedness for borrowed money (other than non-recourse
obligations) of the Company or any of its subsidiaries entitling, or which,
with notice or lapse of time or both, would entitle, the holders thereof to
accelerate the maturity thereof, exists or will exist as a result of the
execution and delivery of this Agreement, the Remarketing Agreement or the
Indenture, the issuance and sale of the Securities or the consummation of
the transactions contemplated hereby or thereby.
Authorization and Description of the Securities and the
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Indenture. The Securities have been duly and validly authorized for
---------
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against payment of the consideration therefor
set forth herein, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights of creditors or by general equity principles, and will be
entitled to the benefits of the Indenture; the Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid
and legally binding obligation of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors or by general equity principles; the
Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Registration Statement and the
Prospectus; the issuance of the Securities is not subject to preemptive
rights, rights of first refusal 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 pursuant to the Registration Statement.
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).
Investment Company Act. The Company is not required to be
----------------------
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
Rating of Securities. The senior debt securities of the
--------------------
Company are currently rated "Baa1" by Moody's Investor's Service, Inc.
("Moody's") and "BBB+" by Standard & Poor's Ratings Service ("Standard &
Poor's"). The Securities will be rated by Moody's and Standard & Poor's.
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.
Sale and Delivery to the Underwriter; Closing.
---------------------------------------------
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 101.748% of
the principal amount thereof, the principal amount of Securities set forth in
Schedule A hereto opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
Payment of the purchase price for, and delivery of certificates for,
the Securities shall be made at the office of Latham & Watkins, 633 West Fifth
Street, Suite 4000, Los Angeles, California 90071-2007, 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 June 8, 1998 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").
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 Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least one
business day before Closing Time. The certificates for the Securities 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 in New York, New York.
Covenants of the Company. The Company covenants with each Underwriter
------------------------
as follows:
Compliance with Securities Regulations and Commission Requests. The
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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.
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 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.
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.
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.
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.
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.
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.
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".
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).
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.
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 expenses
of the Trustee, including the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities, (iv) any fees payable in
connection with the rating of the Securities, (v) the fees and disbursements of
the Company's counsel and accountants, (vi) 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, (vii) 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, (viii) the printing and delivery to the Underwriters of copies
of the Supplemental Blue Sky Survey and the Indenture and (ix) any fees and
expenses of a depositary in connection with holding the Securities in book-entry
form.
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.
Conditions of the 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:
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.
Opinions. At Closing Time the Underwriters shall have received:
--------
The favorable opinion, dated as of Closing Time, of Latham &
Watkins, special counsel for the Company, in form and scope satisfactory to
counsel for the Underwriters, to the effect that:
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 1933 Act and no proceedings therefor
have been initiated or threatened by the Commission.
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 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.
Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules and other financial 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.
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.
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, the Remarketing
Agreement or the Indenture, 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).
The issue and sale of the Securities and the compliance
by the Company with the provisions of this Agreement, the
Remarketing Agreement and the Indenture and the consummation of
the transactions contemplated herein and therein 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 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.
The Company is not required to be registered under the
1940 Act.
The Indenture has been duly qualified under the 1939
Act.
The Securities are in due and proper form and when
executed and authenticated in accordance with the terms of the
Indenture and delivered pursuant to the provisions of this
Agreement against payment of the consideration therefor, will be
legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, and each
holder of the Securities will be entitled to the benefits of the
Indenture.
The Indenture and the Remarketing Agreement are legally
valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms.
The information in the Prospectus under the caption
"Description of the MOPPRS," 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.
The favorable opinion, dated as of Closing Time, of Latham &
Watkins, 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:
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 the information in the Prospectus under the
captions "Certain Federal Income Tax Considerations to the
Company" and "Certain United States Federal Income Tax
Considerations," 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.
The favorable opinion, dated as of Closing Time, of Ballard
Spahr Andrews & Ingersoll, LLP, Maryland counsel for the Company, in
form and scope satisfactory to counsel for the Underwriter, to the
effect that:
The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland.
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.
The authorized capital stock of the Company consists of
(a) 50,000,000 shares of Preferred Stock, par value one dollar
($1.00) per share, of which 2,760,000 shares have been classified
as Series A Preferred Stock; and (b) 100,000,000 shares of Common
Stock, par value one dollar ($1.00) per share.
The execution and delivery of each of the Indenture and
the Remarketing Agreement has been duly authorized by all
necessary corporate action on the part of the Company under its
charter and bylaws and the Maryland General Corporation Law (the
"MGCL"). The Indenture and the Remarketing Agreement have each
been duly executed and delivered by the Company.
The issuance of the Securities pursuant to the
Indenture, and the offer and sale of the Securities pursuant to
this Agreement, have been duly authorized by all necessary
corporate action on the part of the Company under its charter and
bylaws and the MGCL.
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, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
The execution and delivery of this Agreement has been
duly authorized by all necessary corporate action on the part of
the Company under its charter and bylaws and the MGCL. This
Agreement has been duly executed and delivered by the Company.
The issuance and sale of the Securities by the Company
and the compliance by the Company with the provisions of this
Agreement, the Remarketing Agreement and the Indenture and the
consummation of the transactions contemplated thereby (as related
to the Securities with respect to the Indenture), will not result
in any violation of the provisions of the charter or bylaws of
the Company.
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, Ballard Spahr Andrews & Ingersoll, LLP
shall state that each of Brown & Wood llp, in rendering its opinion
pursuant to Section 5(b)(5), and Latham & Watkins, in rendering its
opinion pursuant to Section 5(b)(1), may rely upon such opinion as to
matters arising under the laws of the State of Maryland.
The favorable opinion, dated as of Closing Time, of
Edward J. Henning, General Counsel of the Company, in form and scope
satisfactory to counsel for the Underwriters, to the effect that:
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.
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.
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.
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.
The authorized, issued and outstanding capital stock of
the Company is as set forth in the Company's Consolidated Balance
Sheets as of December 31, 1997 included in the Form 10-K and
incorporated by reference in the Prospectus (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.
The favorable opinion, dated as of Closing Time, of Brown &
Wood llp, counsel for the Underwriters, with respect to the matters
set forth in (i), (ii), (viii), (ix), (x) and (xi) of subsection
(b)(1) and (i), (iv), (v) and (vii) of subsection (b)(3) of this
Section. In rendering such opinion, Brown & Wood llp may rely upon the
opinion of Ballard Spahr Andrews & Ingersoll, rendered pursuant to
Section 5(b)(3) as to matters arising under the laws of the State of
Maryland.
In giving their opinions required by subsections (b)(1) and
(b)(5), respectively, of this Section, Latham & Watkins and Brown &
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 data in the Registration Statement or the Prospectus. In
giving their opinions, Latham & Watkins and Brown & Wood 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.
Officers' 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 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.
Accountant's Comfort Letter. At the time of execution of this
---------------------------
Agreement, the Underwriters shall have received from Arthur Andersen 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.
Bring-down Comfort Letter. At Closing Time the Underwriters
-------------------------
shall have received from Arthur Andersen 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.
Additional Documents. At Closing Time 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.
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 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.
Indemnification.
---------------
Indemnification of the 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:
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;
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
against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), 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
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 15 of
the 1933 Act) 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.
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 Merrill Lynch 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).
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
Merrill Lynch, 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, 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.
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.
EDGAR. 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 EDGAR.
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 as set forth on the cover of the Prospectus (or, if Rule 434 is
used, the corresponding location on the Term Sheet) and the total commissions or
other compensation or remuneration received by the Underwriters bears to the
total purchase price of the Securities.
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 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 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, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities were offered exceeds the amount of any
damages which the Underwriters have 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 1933 Act) 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 any
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.
Representations, Warranties and Agreements to Survive Delivery. All
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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.
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, 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 or inadvisable to market
the Securities or enforce contracts for the sale of the Securities, (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, or (iv) if any of the nationally recognized securities rating
agencies specified in Section 1(a)(xix) hereof shall have publicly announced
that it has (A) placed any senior debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading or (B) downgraded any
senior debt securities of the Company. As used in this Section 9(a), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Securities.
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.
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 remaining Underwriters (the
"Non-Defaulting Underwriters") shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements 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 Non-Defaulting Underwriters
shall have not completed such arrangements within such 24-hour period, then this
Agreement 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.
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.
Notices. All notices and other communications hereunder shall be
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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 it at Merrill Lynch & Co., 10877 Wilshire Boulevard, Suite
1900, Los Angeles, CA 90024, Attention: James F. Flaherty III, Managing
Director, and notices to the Company shall be directed to it at 4675 MacArthur
Court, 9th Floor, Newport Beach, California 92660, Attention: Kenneth B. Roath,
President and Chief Executive Officer, with a copy to Pamela B. Kelly, Esq. at
Latham & Watkins, 633 West Fifth Street, Suite 4000, Los Angeles, California
90071.
Parties. This Agreement shall inure to the benefit of and be
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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.
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.
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 Underwriter and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ Kenneth B. Roath
---------------------------------
Name: Kenneth B. Roath
Title: Chairman, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON BROTHERS INC
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Paul M. Meurer
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Authorized Signatory
SCHEDULE A
Underwriter Principal
----------- Amount of
Securities
----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................................ $140,000,000
NationsBanc Montgomery Securities LLC.................................. 30,000,000
Salomon Brothers Inc................................................... 30,000,000
____________
Total.................................................................. $200,000,000
============