Exhibit 1.1
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$250,000,000
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
6.45% Senior Notes
due 2012
PURCHASE AGREEMENT
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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 ...................................... 3
(iii) Independent Accountants ..................................... 4
(iv) Financial Statements ........................................ 4
(v) No Material Adverse Change in Business ...................... 4
(vi) Good Standing of the Company ................................ 5
(vii) Good Standing of Subsidiaries ............................... 5
(viii) REIT Status ................................................. 5
(ix) Capitalization .............................................. 6
(x) Absence of Defaults and Conflicts ........................... 6
(xi) Absence of Proceedings ...................................... 6
(xii) Absence of Further Requirements ............................. 7
(xiii) Authorization of Purchase Agreement ......................... 7
(xiv) Authorization of Indenture .................................. 7
(xv) Authorization of the Securities ............................. 7
(xvi) Description of the Securities ............................... 7
(xvii) Seniority of the Securities ................................. 7
(xviii) Title to Property ........................................... 7
(xix) Investment Company Act ...................................... 8
Section 2. Sale and Delivery to Underwriters; Closing. .............................. 8
Section 3. Covenants of the Company ................................................. 9
(a) Compliance with Securities Regulations and Commission Requests ....... 9
(b) Filing of Amendments ................................................. 9
(c) Delivery of Registration Statements .................................. 10
(d) Delivery of Prospectuses ............................................. 10
(e) Continued Compliance with Securities Laws ............................ 10
(f) Blue Sky Qualifications .............................................. 10
(g) Earnings Statement ................................................... 10
(h) Use of Proceeds ...................................................... 11
(i) Preparation of Prospectus Supplement ................................. 11
(j) Reporting Requirements ............................................... 11
(k) Lock-up Period ....................................................... 11
Section 4. Payment of Expenses ...................................................... 11
Section 5. Conditions of Underwriters' Obligations .................................. 12
(a) Effectiveness of Registration Statement .............................. 12
(b) Opinions ............................................................. 12
(c) Officers' Certificate ................................................ 16
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TABLE OF CONTENTS
(continued)
Page
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(d) Accountant's Comfort Letter ..................................... 16
(e) Bring-down Comfort Letter ....................................... 16
(f) Additional Documents ............................................ 16
(g) Maintenance of Ratings .......................................... 17
Section 6. Indemnification. ................................................. 17
Section 7. Contribution ..................................................... 19
Section 8. Representations, Warranties and Agreements to Survive Delivery ... 21
Section 9. Termination of Agreement. ........................................ 21
Section 10. Default by One or More of the Underwriters ....................... 21
Section 11. Notices .......................................................... 22
Section 12. Parties .......................................................... 22
Section 13. Governing Law and Time ........................................... 23
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$250,000,000
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
6.45% Senior Notes
due 2012
PURCHASE AGREEMENT
June 19, 2002
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
As Representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
4 World Financial Center
New York, New York 10080
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Credit Suisse First Boston Corporation ("Credit
Suisse") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch and Credit Suisse are acting as representatives (in such capacity, Merrill
Lynch and Credit Suisse shall hereinafter be referred to as the
"Representatives"), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of $250,000,000 aggregate
principal amount of the Company's 6.45% Senior Notes due 2012 (the
"Securities"). The Securities are to be issued pursuant to an indenture dated
September 1, 1993 (the "Indenture") between the Company and The Bank of New
York, as trustee (the "Trustee"). The term "Indenture," as used herein, includes
the Officers' Certificate (as defined in the Indenture) establishing the form
and terms of the Securities pursuant to Section 301 of the Indenture.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-86654) under the
Securities Act of 1933, as amended (the "1933 Act") for the registration of
common stock, preferred stock, par value $1.00 per share ("Preferred Stock"),
and debt securities, including the Securities (collectively, the "Registered
Securities"), as amended by Amendment Nos. 1, 2 and 3, thereto dated May 21,
2002, June 7, 2002 and June 10, 2002, which registration statement has been
declared effective by the Commission and copies of which have heretofore been
delivered to you. Such registration statement, in the form in which it was
declared effective, as amended through the date hereof, including all documents
incorporated or deemed to be incorporated by reference therein through the date
hereof, is hereinafter referred to as the "Original Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") is
herein referred to as the "Rule 462(b) Registration Statement." The 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 June 10, 2002 (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 Representative deems advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
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Section 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the date
hereof (such date being hereinafter referred to as the "Representation Date")
and as of the Closing Time referred to in Section 2 as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act and the 1933 Act
Regulations. Each of the Original Registration Statement and any Rule
462(b) Registration Statement and the Base Prospectus, at the respective
times the Original Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and as
of the Representation Date, complied and comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
(including Rule 415(a) of the 1933 Act Regulations), and 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 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 the Representatives expressly
for use in the Registration Statement or the Prospectus or the information
contained in any Statement of Eligibility and Qualification of a trustee
under the 1939 Act filed as an exhibit to the Registration Statement (a
"Form T-1"). For purposes of this Section 1(a), all references to the
Registration Statement, any post-effective amendments thereto and the
Prospectus shall be deemed to include, without limitation, any
electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis, and Retrieval system
("EDGAR").
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when
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read together and with the other information in the Prospectus, at the
respective times the Registration Statement and any amendments thereto
became effective, at the Representation Date and at Closing Time, did not,
do not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) Independent Accountants. The accountants who audited the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; and, except as
otherwise stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; the 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 included in
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein; and the Company's ratios of earnings to fixed charges
included in the Prospectus under the caption "Ratio of Earnings to Fixed
Charges" and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or contemplated thereby,
(A) there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise,
and (C) except for regular quarterly dividends on Common Stock, par value
$1.00 per share, of the Company (the "Common Stock"), the Company's 7 7/8%
Series A Cumulative Redeemable Preferred Stock (the "Series A
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Preferred Stock"), the Company's 8.70% Series B Cumulative Redeemable
Preferred Stock (the "Series B Preferred Stock") and the Company's 8.60%
Series C Cumulative Redeemable Preferred Stock (the "Series C Preferred
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.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the Company is in
substantial compliance with all laws, ordinances and regulations of each
state in which it owns properties that are material to the properties and
business of the Company and its subsidiaries considered as one enterprise
in such state.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
which is a significant subsidiary (each, a "Significant Subsidiary") as
defined in Rule 405 of Regulation C of the 1933 Act Regulations has been
duly organized and is validly existing as a corporation or partnership, as
the case may be, in good standing under the laws of the jurisdiction of its
organization, has power and authority as a corporation or partnership, as
the case may be, to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation or partnership, as the case may be, to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such corporate subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and all of the issued and
outstanding partnership interests of each such subsidiary which is a
partnership have been duly authorized (if applicable) and validly issued
and are fully paid and non-assessable and (except for other partnership
interests described in the Prospectus) are owned by the Company, directly
or through corporate subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) REIT Status. The Company has at all times operated in such
manner as to qualify as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code"), and intends to continue to
operate in such manner.
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(ix) Capitalization. The authorized capital stock of the Company is as
set forth in the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus); and the shares of issued Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable. After giving effect to the sale of the Securities and the
sale of any other Registered Securities to be issued prior to the delivery
of the Securities, the aggregate amount of Securities which have been
issued and sold by the Company will not exceed the aggregate amount of
theretofore unsold Registered Securities.
(x) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its charter or bylaws or in material
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them or their
properties 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, the
Indenture and the Securities and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
charter or bylaws of the Company or any law, administrative regulation or
administrative or court order or decree.
(xi) Absence of Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
or which might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the consummation of
this Agreement or any transaction contemplated hereby; all pending legal or
governmental proceedings to which the 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
6
reference as exhibits to, or incorporated by reference in, the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xii) Absence of Further Requirements. No authorization,
approval, consent, order or decree of any court or governmental
authority or agency is required for the consummation by the Company of
the transactions contemplated by this Agreement or in connection with
the offering, issuance or sale of the Securities hereunder, except such
as may be required under state securities laws.
(xiii) Authorization of Purchase Agreement. This Agreement has
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriters, will be a valid and legally
binding agreement of the Company.
(xiv) Authorization of Indenture. The Indenture has been duly
authorized by the Company and, at the Closing Time, will have been duly
qualified under the 1939 Act and duly executed and delivered by the
Company and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditor's rights generally or by general equitable
principles.
(xv) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Time, will have been duly executed
by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment of the purchase price
therefor specified in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xvi) Description of the Securities. The Securities and the
Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference,
as the case may be, as exhibits to the Registration Statement.
(xvii) Seniority of the Securities. The Securities rank and will
rank on a parity with all unsecured indebtedness (other than
subordinated indebtedness) of the Company that is outstanding on the
date hereof or that may be incurred hereafter, and senior to all
subordinated indebtedness of the Company that is outstanding on the
date hereof or that may be incurred hereafter.
(xviii) 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 in or included in
documents incorporated or deemed to be incorporated by reference in the
Prospectus or such as would not materially adversely affect the
condition, financial or otherwise, or
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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).
(xix) Investment Company Act. The Company is not required to be
registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
(b) Any certificate signed by any officer of the Company and delivered
to the Representatives 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.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, at 99.052% of the
principal amount thereof, the aggregate principal amount of Debt Securities set
forth in Schedule A 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.
(b) Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the office of Latham & Watkins, 650 Town
Center Drive, Suite 2000, Costa Mesa, California 92626, or at such other place
as shall be agreed upon by the Representatives and the Company, at 7:00 a.m.,
California time, on June 25, 2002, or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives 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 Representatives for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. Certificates for the
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one business day before Closing
Time. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Each of
Merrill Lynch and Credit Suisse, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose check has not
been received by Closing Time, but such payment shall not relieve such
Underwriter from its
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obligations hereunder. The certificates for the Securities will be made
available for examination and packaging by the Representatives not later than
10:00 a.m. on the last business day prior to Closing Time in New York, New York.
Section 3. Covenants of the Company. The Company covenants with each
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will notify the Representatives immediately, and
confirm the notice in writing, (i) of the effectiveness of any
post-effective amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of the Prospectus
or any amendment to the Registration Statement or amendment or
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act during any period when the Prospectus is required to be
delivered under the 1933 Act, (iii) of the receipt of any comments or
inquiries from the Commission relating to the Registration Statement or
Prospectus, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceeding for that
purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or
the exemption from qualification of the Securities under state
securities or Blue Sky laws or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to prevent
the issuance by the Commission of any stop order and, if any such stop
order is issued, to obtain the lifting thereof at the earliest possible
moment. The Company will provide the Underwriters with copies of the
form of Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission such
Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations
by the close of business in New York on the second business day
immediately succeeding the date hereof.
(b) Filing of Amendments. The Company will give the
Representatives 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 Representatives
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 Representatives or counsel for the Underwriters shall
reasonably object.
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(c) Delivery of Registration Statements. The Company will deliver
to the Representatives 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 Representatives may
reasonably request and will also deliver to the Representatives 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 Representatives may reasonably request.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, 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) as such
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) Continued Compliance with Securities Laws. If any event shall
occur as a result of which it is necessary, in the opinion of counsel
for the Underwriters or counsel for the Company, to amend or supplement
the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company will furnish
to the Underwriters a reasonable number of copies of such amendment or
supplement.
(f) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Representatives 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.
(g) Earnings Statement. The Company will make generally available
to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 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.
10
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner to be
specified in the Prospectus Supplement under "Use of Proceeds."
(i) Preparation of Prospectus Supplement. Immediately following
the execution of this Agreement, the Company will prepare a prospectus
supplement, dated the date hereof (the "Prospectus Supplement"),
containing the terms of the Securities, the plan of distribution
thereof and such other information as may be required by the 1933 Act
or the 1933 Act Regulations or as the Representatives and the Company
deem appropriate, and will file or transmit for filing with the
Commission in accordance with Rule 424(b) of the 1933 Act Regulations
copies of the Prospectus (including such Prospectus Supplement).
(j) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file promptly all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) Lock-up Period. The Company, during the period beginning on
the date hereof and continuing to and including the Closing Date, not
to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of
the Company substantially similar to the Securities (other than (i) the
Securities or (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Representatives.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Indenture and the Registration Statement as
originally filed and of each amendment thereto, (ii) 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; (iii) any fees payable in
connection with the rating of the Securities; (iv) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (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 (ix) any fees or expenses of a depositary in connection with holding the
securities in book-entry form.
11
If this Agreement is cancelled or terminated by the Representatives 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 fees and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission. The Prospectus (including
the Prospectus Supplement referred to in Section 3(i) hereof) shall
have been filed or transmitted for filing with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations within the prescribed time
period, and prior to Closing Time the Company shall have provided
evidence satisfactory to the Representatives of such timely filing or
transmittal.
(b) Opinions. At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of Closing Time, of
Latham & Watkins, special counsel for the Company, as set forth in
Exhibit A hereto.
(2) 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:
(i) the Company was organized in conformity with the
requirements for qualification as a real estate investment
trust under the Code commencing with its taxable year ending
December 31, 1985, and its proposed method of operation will
enable it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code;
and
(ii) the information in the Prospectus under the captions
"United States Federal Income Tax Considerations Related to
our REIT Election" and "Supplemental United States Federal
Income Tax Considerations" insofar as they purport to
describe or summarize certain provision of the agreements,
statues or regulations referred to therein, are accurate
descriptions or summaries in all material respects.
(3) 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
Underwriters, to the effect that:
12
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The authorized capital stock of the Company is as set
forth in the Prospectus under "Capitalization."
(iv) The execution and delivery of the Indenture have been duly
and validly authorized by all necessary corporate action on the part
of the Company under its charter and bylaws and the Maryland General
Corporation Law. The Indenture has been duly executed and delivered by
the Company.
(v) 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 Maryland
General Corporation Law.
(vi) Texas HCP, Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland 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 has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, or claim.
(vii) The execution and delivery of this Agreement have been
duly and validly authorized by all necessary corporate action on the
part of the Company under its charter and bylaws and the Maryland
General Corporation Law. This Agreement, to the knowledge of such
counsel, has been duly executed and delivered by the Company.
(viii) The issuance and sale of the Securities by the Company and
the compliance by the Company with the provisions of this Agreement
and the consummation of the transactions contemplated hereby, will not
result in any violation of the provisions of the charter or bylaws of
the Company.
(ix) No authorization, approval, consent, decree or order of
any court or governmental authority or agency is required under the
Maryland General Corporation Law for the consummation by the Company
of the
13
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.
In rendering its opinion, Ballard Spahr Andrews & Ingersoll, LLP shall
state that each of Sidley Austin 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.
(4) 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:
(i) To the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) To the best of such counsel's knowledge and information,
each Significant Subsidiary of the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification,
except where the failure to so qualify and be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(iii) To the best of such counsel's knowledge and information,
no material default exists in the due performance or observance by the
Company or any of its subsidiaries of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument described or referred
to in the Registration Statement or filed as an exhibit thereto or
incorporated by reference therein which would have a material adverse
effect on the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be described or
14
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto and the descriptions
thereof or references thereto are correct.
(v) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
(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 and Preferred Stock have been duly authorized
and validly issued and are fully paid and non-assessable.
(vi) 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.
(vii) The issue and sale of the Securities and the compliance by
the Company with the provisions of this Agreement, the Indenture and
the Securities and the consummation of the transactions contemplated
herein will not, to the best of such counsel's knowledge, result in
any material violation of any order 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.
(5) The favorable opinion, dated as of Closing Time, of Sidley Austin
Brown & Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in paragraphs (i), (ii) and (iii) of Exhibit A hereto and in
subparagraphs (i), (iv), (v), (vii) and (xi) of subsection (b)(3) of this
Section. In rendering such opinion, Sidley Austin Brown & Wood LLP may rely
upon the opinion of Ballard Spahr Andrews & Ingersoll, LLP, rendered
pursuant to Section 5(b)(3), as to matters arising under the laws of the
State of Maryland.
(6) In giving their opinions required by subsections (b)(1) and
(b)(5), respectively, of this Section, Latham & Watkins and Sidley Austin
Brown & Wood LLP shall each additionally state that no facts have come to
their attention that have caused 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
15
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 and that part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility and
Qualification under the 1939 Act (Form T-1). In giving their opinions,
Latham & Watkins and Sidley Austin 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.
(c) 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 Representatives shall have received a
certificate of the President or a Vice President of the Company and of 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.
(d) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young LLP a
letter, dated such date, in form and substance satisfactory to the
Representatives, 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 Representatives.
(e) Bring-down Comfort Letter. At Closing Time the Representatives
shall have received from Ernst & Young LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
specified date referred to therein shall be a date not more than three
business days prior to Closing Time.
(f) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably
16
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
Representatives and counsel for the Underwriters.
(g) Maintenance of Ratings. At Closing Time, the Securities shall be
rated at least Baa2 by Moody's Investors Service Inc. and BBB+ by Standard
& Poor's Corporation, and the Company shall have delivered to the
Representatives a letter, dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's other securities by any
nationally recognized securities rating agency, and no such securities
rating agency shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the
Securities or any of the Company's other securities.
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
Representatives 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.
Section 6. Indemnification.
(a) 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:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or any omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
17
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by the Representatives), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives 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 the Underwriters (or to the benefit of any person controlling an
Underwriter within the meaning of Section 15 of the 1933 Act) to the extent that
any such loss, liability, claim, damage or expense of the Underwriters or any
person controlling the Underwriters' results from the fact that the Underwriters
sold Securities to a person to whom it shall be established there was not sent
or given by the Underwriters or on the Underwriters' 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 and provided that the Company shall have met its obligation pursuant to
this Agreement to provide the Underwriters with such Prospectus (as so amended
or supplemented).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus, preliminary prospectus supplement or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give written notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so
18
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 the Representatives, 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.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) 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.
Section 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
19
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus (or, if Rule 434 is used,
the corresponding location on the Term Sheet) bear to the aggregate public
offering price of the Securities as set forth on such cover (or corresponding
location on the Term Sheet, as the case may be).
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material 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, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it were offered exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 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 an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
20
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.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) The Representatives 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 material adverse change in the financial markets in the United
States, 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
judgment of the Representatives, impracticable to market the Securities or
enforce contracts for the sale of the Securities, or (iii) if trading in the
securities of the Company has been suspended by the Commission, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
or in the NASDAQ National Market has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission,
the NASD or any other governmental authority, or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, or (iv) if a banking moratorium has been declared by either
federal, New York, Maryland or California authorities. As used in this Section
9(a), the term "Prospectus" means the Prospectus in the form first used to
confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if,
21
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Securities to be purchased on such
date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken 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 Representatives 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. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch, Pierce,
Fenner & Smith Incorporated, 10877 Wilshire Boulevard, Suite 1900, Los Angeles,
CA 90024, Attention: James G. Jackson, 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 R. Scott Shean, Esq. at Latham & Watkins, 650
Town Center Drive., Suite 2000, Costa Mesa, California 92626.
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof and their
heirs and legal representatives any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
22
Section 13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such State. Unless stated otherwise, all
specified times of day refer to New York City time.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By:/s/ Devasis Ghose
-------------------------------------
Name: Devasis Ghose
Title: Senior Vice President -- Finance
and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Authorized Signatory
-------------------------------------
Authorized Signatory
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Authorized Signatory
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
24
SCHEDULE A
Aggregate Principal
Name of Underwriter Amount of Securities
------------------- --------------------
Merrill Lynch, Pierce Fenner & Smith
Incorporated .............................. $ 87,500,000
Credit Suisse First Boston Corporation ........... 87,500,000
Deutsche Bank Securities Inc. .................... 20,000,000
Banc of America Securities LLC ................... 13,750,000
BNY Capital Markets, Inc. ........................ 13,750,000
Goldman, Sachs & Co. ............................. 13,750,000
Wachovia Securities, Inc. ........................ 13,750,000
-------------
Total ..................................... $ 250,000,000
=============
A-1