<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HEALTH CARE PROPERTY INVESTORS, INC.
(FIRST NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 33-0091377
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR (IDENTIFICATION NO.)
ORGANIZATION)
10990 WILSHIRE BOULEVARD, SUITE 1200
LOS ANGELES, CALIFORNIA 90024
(310) 473-1990
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
KENNETH B. ROATH
CHAIRMAN, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
10990 WILSHIRE BOULEVARD, SUITE 1200
LOS ANGELES, CALIFORNIA 90024
(310) 473-1990
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------
COPIES TO:
PAMELA B. KELLY, ESQ. PAUL C. PRINGLE, ESQ.
LATHAM & WATKINS BROWN & WOOD LLP
633 WEST FIFTH STREET, SUITE 4000 555 CALIFORNIA STREET
LOS ANGELES, CALIFORNIA 90071-2007 SAN FRANCISCO, CALIFORNIA 94104
(213) 485-1234 (415) 772-1200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
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If the only securities being registered on this Form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest investment plans, check the following
box. [X]
If this Form is filed to register additional securities for the offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS OF
SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED(1) REGISTERED OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock, Common
Stock and Rights (3) (3) $300,000,000 $90,910(4)
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</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
(1) This Registration Statement also covers delayed delivery contracts which
may be issued by the Registrant under which the counterparty may be
required to purchase Debt Securities, Preferred Stock or Common Stock.
Such contracts would be issued with the Debt Securities, Preferred Stock
and/or Common Stock.
(2) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $300,000,000.
(3) Not applicable pursuant to General Instructions LD of Form S-3 under the
Securities Act of 1933.
(4) Calculated pursuant to Rule 457(0) of the rules and regulations under the
Securities Act.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 18, 1997
PROSPECTUS
HEALTH CARE PROPERTY INVESTORS, INC.
SECURITIES
Health Care Property Investors, Inc. (the "Company") may offer from time to
time, in one or more series, its unsecured debt securities (the "Debt
Securities"), shares of its Preferred Stock, par value $1.00 per share (the
"Preferred Stock") and shares of its Common Stock, par value $1.00 per share
(the "Common Stock"). The Debt Securities, the Preferred Stock and the Common
Stock are collectively referred to herein as the "Securities." The Securities
will have an aggregate Offering price of $300,000,000 and will be offered on
terms to be determined at the time of the Offering.
In the case of Debt Securities, the specific title, the aggregate principal
amount, the purchase price, the maturity, the rate and time of payment of any
interest, any redemption or sinking fund provisions, any conversion provisions
and any other specific term of the Debt Securities will be set forth in the
accompanying supplement to this Prospectus (the "Prospectus Supplement") and/or
a related pricing supplement (the "Pricing Supplement"). In the case of
Preferred Stock, the specific number of shares, designation, stated value per
share, liquidation preference per share, issuance price, dividend rate (or
method of calculation), dividend payment dates, any redemption or sinking fund
provisions, any conversion rights and any other specific term of the series of
Preferred Stock will be set forth in the accompanying Prospectus Supplement. In
the case of Common Stock, the specific number of shares and issuance price per
share will be set forth in the accompanying Prospectus Supplement. The
Prospectus Supplement will also disclose whether the Securities will be listed
on a national securities exchange and if they are not to be listed, the
possible effects thereof on their marketability.
Securities may be sold directly, through agents from time to time or through
underwriters or dealers, which may include Merrill Lynch, Pierce, Fenner &
Smith Incorporated. If any agent of the Company or any underwriter is involved
in the sale of the Securities, the name of such agent or underwriter and any
applicable commission or discount will be set forth in the accompanying
Prospectus Supplement. See "Plan of Distribution." The net proceeds to the
Company from such sale also will be set forth in the applicable Prospectus
Supplement.
The Debt Securities, if issued, will rank on parity with all other unsecured
and unsubordinated indebtedness of the Company. See "Description of the Debt
Securities."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
-----------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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The date of this Prospectus is , 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith,
files, reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at Room 1024 of the offices of
the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and is available for inspection and copying at the regional offices of
the Commission located at 7 World Trade Center, 13th Floor, New York, New York
10048, and Suite 1400, Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained from the principal
offices of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a world
wide web site at http://www.sec.gov that contains reports, proxy and other
information regarding registrants that file electronically with the
Commission. Reports, proxy materials and other information concerning the
Company may also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus and any accompanying Prospectus Supplement do not
contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to
the Registration Statement, which may be examined without charge at the public
reference facilities maintained by the Commission at the Public Reference Room
of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Copies thereof may be obtained from the Commission
upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, (ii) proxy statement dated March 21, 1997, (iii) Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997, and (iv) the
description of the Common Stock contained in the Company's Registration
Statement on Form 10, dated May 7, 1985 (File No. 1-8895), including
amendments dated May 20, 1985 and May 23, 1985, in each case as filed with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference
into this Prospectus and shall be deemed to be a part hereof.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the Offering of the Securities offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be part hereof
from the date of filing such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document, as the case may be, which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered, upon written or oral request. Copies of this
Prospectus, as amended or supplemented from time to time, and any other
documents (or parts of documents) that constitute part of this Prospectus
under Section 10(a) of the Securities Act will also be provided without charge
to each such person, upon written or oral request. Requests for such copies
should be directed to James G. Reynolds, Executive Vice President and Chief
Financial Officer, Health Care Property Investors, Inc., 10990 Wilshire
Boulevard, Suite 1200, Los Angeles, California 90024, (310) 473-1990.
2
<PAGE>
THE COMPANY
Health Care Property Investors, Inc. (the "Company"), a Maryland
corporation, was organized in March 1985 to qualify as a real estate
investment trust. The Company invests in health care related real estate
located throughout the United States, including long-term care facilities,
congregate care and assisted living facilities, acute care and rehabilitation
hospitals, medical office buildings, physician group practice clinics and
psychiatric facilities.
References herein to the Company include Health Care Property Investors,
Inc. and its wholly-owned subsidiaries, unless the context otherwise requires.
The Company's principal offices are located at 10990 Wilshire Boulevard, Suite
1200, Los Angeles, California 90024, and its telephone number is (310) 473-
1990.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the ratio of earnings to fixed charges for the Company
for the periods indicated:
<TABLE>
<CAPTION>
THREE
MONTHS
YEAR ENDED DECEMBER 31, ENDED
------------------------ MARCH 31,
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........... 2.77 3.06 3.35 3.67 3.16 3.14
</TABLE>
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(1) In computing the ratios of earnings to fixed charges: (a) earnings have
been based on consolidated income from operations before fixed charges
(exclusive of capitalized interest) and (b) fixed charges consist of
interest on debt including amounts capitalized and the pro rata share of
the partnerships' fixed charges.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered from
time to time hereby will be used for general corporate purposes, including the
repayment of outstanding indebtedness, the acquisition of health care related
properties and the construction thereof.
3
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an existing indenture (the
"Indenture") dated as of September 1, 1993 between the Company and The Bank of
New York, as Trustee (the "Trustee"), which has been filed with the Commission
and incorporated by reference in the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
Indenture and the Debt Securities do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indenture to which reference is hereby made for a full
description of such provisions, including the definitions therein of certain
terms and for other information regarding the Debt Securities. Whenever
particular sections or defined terms of the Indenture are referred to, it is
intended that such sections or defined terms shall be incorporated herein by
reference. Copies of the Indenture are available for inspection during normal
business hours at the principal executive offices of the Company, 10990
Wilshire Boulevard, Suite 1200, Los Angeles, California 90024.
The following sets forth certain general terms and provisions of the Debt
Securities offered by this Prospectus and the accompanying Prospectus
Supplement (the "Offered Debt Securities"). Further terms of the Offered Debt
Securities are set forth in the applicable Prospectus Supplement and/or an
applicable Pricing Supplement.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt
Securities may be issued from time to time in one or more series. All
securities issued under the Indenture will rank equally and ratably with all
other securities issued under the Indenture.
The Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The Debt
Securities are not, by their terms, subordinate in right of payment to any
other indebtedness of the Company.
The Prospectus Supplement and any related Pricing Supplement will describe
certain terms of the Offered Debt Securities, including (a) the title of the
Offered Debt Securities; (b) any limit on the aggregate principal amount of
the Offered Debt Securities and their purchase price; (c) the date or dates on
which the Offered Debt Securities will mature; (d) the rate or rates per annum
(or manner in which interest is to be determined) at which the Offered Debt
Securities will bear interest, if any, and the date from which such interest,
if any, will accrue; (e) the dates on which such interest, if any, on the
Offered Debt Securities will be payable and the Regular Record Dates for such
Interest Payment Dates; (f) any mandatory or optional sinking fund or
analogous provisions; (g) additional provisions, if any, for the defeasance of
the Offered Debt Securities; (h) the date, if any, after which and the price
or prices at which the Offered Debt Securities may, pursuant to any optional
or mandatory redemption or repayment provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory redemption or
repayment provisions; (i) whether the Offered Debt Securities are to be issued
in whole or in part in registered form represented by one or more registered
global securities (a "Registered Global Security") and, if so, the identity of
the depositary for such Registered Global Security or Securities; (j) any
applicable material United States federal income tax consequences; and (k) any
other specific terms of the Offered Debt Securities, including any additional
events of default or covenants provided for with respect to such Debt
Securities, and any terms that may be required by or advisable under
applicable laws or regulations.
Principal of, premium, if any, and interest, if any, on the Debt Securities
will be payable at such place or places as are designated by the Company and
set forth in the applicable Prospectus Supplement. Interest, if any, on the
Debt Securities will be paid, unless otherwise provided in the applicable
Prospectus Supplement, by check mailed to the person in whose name the Debt
Securities are registered at the close of business on the record dates
designated in the applicable Prospectus Supplement at the address of the
related holder appearing on the register of Debt Securities. The Trustee will
maintain at an office in the Borough of Manhattan, The City of New York, a
register for the registration of transfers of Debt Securities, subject to any
restrictions set forth in the applicable Prospectus Supplement relating to the
Debt Securities.
4
<PAGE>
Unless otherwise provided in the applicable Prospectus Supplement or Pricing
Supplement, the Debt Securities will be issued only in fully registered form
without coupons, and in denominations of $1,000 or any larger amount that is
an integral multiple of $1,000. Debt Securities may be presented for exchange
and transfer in the manner, at the places and subject to the restrictions set
forth in the Indenture, the Debt Securities and the Prospectus Supplement.
Such services will be provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject to the
limitations provided in the Indenture.
Debt Securities will bear interest at a fixed rate or a floating rate. The
Debt Securities may be issued at a price less than their stated redemption
price at maturity, resulting in such Debt Securities being treated as issued
with original issue discount for federal income tax purposes ("Original Issue
Discount Debt Securities"). Such Original Issue Discount Debt Securities may
currently pay no interest or interest at a rate which at the time of issuance
is below market rates. Special federal income tax and other considerations
applicable to any such discounted Notes will be described in the Prospectus
Supplement or Pricing Supplement relating thereto.
The Indenture provides that all Debt Securities of any one series need not
be issued at the same time and that the Company may, from time to time, issue
additional Debt Securities of a previously issued series. In addition, the
Indenture provides that the Company may issue Debt Securities with terms
different from those of any other series of Debt Securities and, within a
series of Debt Securities, certain terms (such as interest rate or manner in
which interest is calculated and maturity date) may differ.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged for
or converted into shares of Common Stock, Preferred Stock or Debt Securities
of another series will be set forth in the Prospectus Supplement relating
thereto. To protect the Company's status as a REIT, a holder may not convert
any Debt Security, and such Debt Security shall not be convertible by any
holder, if as a result of such conversion any person would then be deemed to
beneficially own, directly or indirectly, 9.9% or more of the Company's Common
Stock.
GLOBAL DEBT SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Securities (a "Registered Global Security")
that will be deposited with a depositary (a "Depositary") or with a nominee
for a Depositary identified in the Prospectus Supplement relating to such
series and registered in the name of the Depositary or a nominee thereof. In
such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Security or Securities. Unless and until
it is exchanged in whole for Debt Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the
Depositary for such Registered Security to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The
accounts to be credited shall be designated by any dealers,
5
<PAGE>
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in such Registered Global
Security will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the
Debt Securities represented by such Registered Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners
or holders thereof under the Indenture. Accordingly, each person owning a
beneficial interest in a Registered Global Security must rely on the
procedures of the Depositary for such Registered Global Security and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. The Company understands that under existing industry practices,
if the Company requests any action of holders or if an owner of a beneficial
interest in a Registered Global Security desires to give or take any action
which a holder is entitled to give or take under the Indenture, the Depositary
for such Registered Global Security would authorize the participants holding
the relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments of Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
None of the Company, the Trustee or any other agent of the Company or agent of
the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest in respect of such Registered Global Security, will
immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered
Global Security as shown on the records of such Depositary. The Company also
expects that payments by participants to owners of beneficial interests in
such Registered Global Security held through such participants will be
governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer form
or registered in "street name," and will be responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for the Registered Global Security
or Securities representing such Debt Securities. Any Debt Securities issued in
definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received
by the Depositary from participants with respect to ownership of beneficial
interests in such Registered Global Security.
6
<PAGE>
CERTAIN COVENANTS OF THE COMPANY
Limitation on Borrowing Money
The Company covenants in the Indenture that it will not create, assume,
incur, or otherwise become liable in respect of, any
(a) Senior Debt (as defined below) unless the aggregate principal amount
of Senior Debt outstanding of the Company will not, at the time of such
creation, assumption or incurrence and after giving effect thereto and to
any concurrent transactions, exceed the greater of (i) 300% of Capital Base
(as defined below), or (ii) 500% of Tangible Net Worth (as defined below);
and
(b) Non-Recourse Debt (as defined below) unless the aggregate principal
amount of Senior Debt and Non-Recourse Debt outstanding of the Company will
not, at the time of such creation, assumption or incurrence and after
giving effect thereto and to any concurrent transactions, exceed 500% of
Capital Base.
For the purpose of this limitation as to borrowing money, "Senior Debt"
shall mean all Debt other than Non-Recourse Debt and Subordinated Debt;
"Debt," with respect to any Person, shall mean (i) its indebtedness, secured
or unsecured, for borrowed money; (ii) Liabilities secured by any existing
lien on property owned by such Person; (iii) Capital Lease Obligations, and
the present value of all payments due under any arrangement for retention of
title (discounted at the implicit rate if known and at 9% otherwise) if such
arrangement is in substance an installment purchase or an arrangement for the
retention of title for security purposes; and (iv) guarantees of obligations
of the character specified in the foregoing clauses (i), (ii) and (iii), to
the full extent of the liability of the guarantor (discounted to present
value, as provided in the foregoing clause (iii), in the case of guarantees of
title retention arrangements); "Capital Lease" shall mean at any time any
lease of Property which, in accordance with generally accepted accounting
principles, would at such time be required to be capitalized on a balance
sheet of the lessee; "Capital Lease Obligation" shall mean at any time the
amount of the liability in respect of a Capital Lease which, in accordance
with generally accepted accounting principles, would at such time be so
required to be capitalized on a balance sheet of the lessee; "Property" shall
mean any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible; "Person" shall mean an individual,
partnership, joint venture, joint-stock company, association, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof; "Non-Recourse Debt" with respect to any Person, shall
mean any Debt secured by, and only by, property on or with respect to which
such Debt is incurred where the rights and remedies of the holder of such Debt
in the event of default do not extend to assets other than the property
constituting security therefor; "Subordinated Debt" shall mean any unsecured
Debt of the Company which is issued or assumed pursuant to, or evidenced by,
an indenture or other instrument which contains provisions for the
subordination of such other Debt (to which appropriate reference shall be made
in the instruments evidencing such other Debt if not contained therein) to the
Debt Securities (and, at the option of the Company, if so provided, to other
Debt of the Company, either generally or as specifically designated); "Capital
Base" shall mean, at any date, the sum of Tangible Net Worth and Subordinated
Debt; "Tangible Net Worth" shall mean, at any date, the net book value (after
deducting related depreciation, obsolescence, amortization, valuation, and
other proper reserves) of the Tangible Assets of the Company at such date,
minus the amount of its Liabilities at such date; "Tangible Assets" shall mean
all assets of the Company (including assets held subject to Capital Leases and
other arrangements pursuant to which title to the Property has been retained
by or vested in some other Person for security purposes) except: (i) deferred
assets other than prepaid insurance, prepaid taxes and deposits; (ii) patents,
copyrights, trademarks, trade names, franchises, goodwill, experimental
expense and other similar intangibles; and (iii) unamortized debt discount and
expense; and "Liabilities" shall mean any date the items shown as liabilities
on the balance sheet of the Company, except any items of deferred income,
including capital gains.
Consolidation, Merger and Sale of Assets
The Company shall not consolidate or merge with or into, or transfer or
lease its assets substantially as an entirety to any person unless the Company
shall be the continuing corporation, or the successor corporation or person to
which such assets are transferred or leased shall be organized under the laws
of the United States or
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any state thereof or the District of Columbia and shall expressly assume the
Company's obligations on the Debt Securities and under such Indenture, and
after giving effect to such transaction no Event of Default shall have
occurred and be continuing, and certain other conditions are met.
Additional Covenants
Any additional covenants of the Company with respect to a series of the Debt
Securities will be set forth in the Prospectus Supplement and/or Pricing
Supplement relating thereto.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with respect to
the Debt Securities of any series: (a) failure to pay principal of or any
premium on any Debt Security of such series when due; (b) failure to pay any
interest on any Debt Security of such series when due, continued for 30 days;
(c) failure to deposit any sinking fund payment when due in respect of any
Debt Security of such series; (d) failure to perform any other covenant or
warranty of the Company in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of one or more series of Debt
Securities other than that series), continued for 60 days after written notice
by the Trustee to the Company or by the holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of such series to the
Company and the Trustee as provided in the Indenture; (e) certain events in
bankruptcy, insolvency, conservatorship, receivership or reorganization of the
Company; (f) an acceleration of any other indebtedness of the Company, in an
aggregate principal amount exceeding $20,000,000, not rescinded or annulled
within 10 days after written notice is given as provided in the Indenture; and
(g) the occurrence of any other Event of Default provided with respect to the
Debt Securities of that series.
If an Event of Default with respect to the Outstanding Debt Securities of
any series occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series may declare the principal amount of all the Outstanding Debt
Securities of that series to be due and payable immediately. At any time after
the declaration of acceleration with respect to the Debt Securities of any
series has been made, but before a judgment or decree based on acceleration
has been obtained, the holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default with respect to a series of Debt Securities, give to
the holders of the Outstanding Debt Securities of such series notice of all
uncured defaults known to it. Except in the case of default in the payment of
principal, premium, if any, or interest, if any, on any Debt Securities of a
series, the Trustee shall be protected in withholding such notice if the
Trustee in good faith determines that the withholding of such notice is in the
interest of the holders of Outstanding Debt Securities of such series.
The Indenture provides that, subject to the duty of the Trustee during the
continuance of an Event of Default to act with the required standard of care,
the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the holders,
unless such holders shall have offered to the Trustee reasonable indemnity.
Subject to such provisions for the indemnification of the Trustee and subject
to certain other limitations, the holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
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MODIFICATION, WAIVER AND AMENDMENT
The Indenture provides that modifications and amendments may be made by the
Company and the Trustee to the Indenture with the consent of the holders of
not less than 66 2/3% in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the holder of each Outstanding Debt Security affected thereby, (a)
change the Stated Maturity of the principal of, or any installment of
principal of, premium, if any, or interest, if any, on any Debt Security; (b)
reduce the principal amount of, premium, if any, or interest, if any, on any
Debt Security; (c) reduce the amount of principal of an Original Issue
Discount Debt Security payable upon acceleration of the Stated Maturity
thereof; (d) change the place or currency of payment of the principal of,
premium, if any, or interest, if any, on any Debt Security; (e) impair the
right to institute suit for the enforcement of any payment on or with respect
to any Debt Security; or (f) reduce the percentage in aggregate principal
amount of the Outstanding Debt Securities of any series, the consent of whose
holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults.
The holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of each series will be able, on behalf of all holders of the
Debt Securities of that series, to waive compliance by the Company with
certain restrictive provisions of the Indenture, or any past default under the
Indenture with respect to the Debt Securities of that series, except a default
in the payment of principal, premium, if any, or interest, if any, or in
respect of a provision of the Indenture which cannot be amended or modified
without the consent of the holder of each Outstanding Debt Security of the
series affected.
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture, with respect to any and all series of Debt Securities (except
for certain specified surviving obligations including, among other things, the
Company's obligation to pay the principal of, premium, if any, or interest, if
any, on any Debt Securities), will be discharged and cancelled upon the
satisfaction of certain conditions, including the payment in full of the
principal of, premium, if any, and interest, if any, on all of the Debt
Securities of such series or the deposit with the Trustee of an amount of cash
sufficient for such payment or redemption, in accordance with the Indenture.
DEFEASANCE
The Company will be able to terminate certain of its obligations under the
Indenture with respect to the Debt Securities of any series on the terms and
subject to the conditions contained in the Indenture, by depositing in trust
with the Trustee cash or U.S. government obligations (or combination thereof)
sufficient to pay the principal of, premium, if any, and interest, if any, on
the Debt Securities of such series to their maturity or redemption date in
accordance with the terms of the Indenture and such Debt Securities.
GOVERNING LAW AND CONSENT TO JURISDICTION
The Debt Securities and the Indenture will be governed by and construed in
accordance with the laws of the State of California.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage
in other transactions with the Company; provided, however, that if the Trustee
acquires any conflicting interest it must eliminate such conflict or resign or
otherwise comply with the Trust Indenture Act of 1939, as amended.
The Indenture provides that, in case an Event of Default should occur and be
continuing, the Trustee will be required to use the degree of care and skill
of a prudent person in the conduct of his or her own affairs in the exercise
of its powers.
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Articles of Restatement of the Company (the "Charter Documents"), and the
Board of Directors' resolution or articles supplementary (the "Articles
Supplementary") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference to the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Preferred Stock.
GENERAL
The authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock, $1.00 par value per share, and 50,000,000 shares of Preferred
Stock, $1.00 par value per share. See "Description of Common Stock."
Under the Charter Documents, the Board of Directors of the Company is
authorized without further stockholder action to establish and issue, from
time to time, up to 50,000,000 shares of preferred stock of the Company, in
one or more series, with such designations, preferences, powers and relative
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereon, including, but not limited to, dividend
rights, dividend rate or rates, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price
or prices, and the liquidation preferences as shall be stated in the
resolution providing for the issue of a series of such stock, adopted, at any
time or from time to time, by the Board of Directors of the Company.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall commence
to cumulate, if any; (v) any redemption or sinking fund provisions; (vi) any
conversion rights; and (vii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise stated in a Prospectus
Supplement relating to a particular series of the Preferred Stock, each series
of the Preferred Stock will rank on a parity as to dividends and distributions
of assets with each other series of the Preferred Stock. The rights of the
holders of each series of the Preferred Stock will be subordinate to those of
the Company's general creditors.
CERTAIN PROVISIONS OF THE CHARTER DOCUMENTS
See "Description of Common Stock--Redemption and Business Combination
Provisions" for a description of certain provisions of the Charter Documents,
including provisions relating to redemption rights and provisions which may
have certain anti-takeover effects.
DIVIDEND RIGHTS
Holders of shares of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds of the Company legally available therefor, cash
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dividends on such dates and at such rates as will be set forth in, or as are
determined by the method described in, the Prospectus Supplement relating to
such series of the Preferred Stock. Such rate may be fixed or variable or
both. Each such dividend will be payable to the holders of record as they
appear on the stock books of the Company on such record dates, fixed by the
Board of Directors of the Company, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the holders of such series of Preferred Stock will have no
right to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company shall have no obligation to pay the
dividend accrued for such period, whether or not dividends on such series are
declared payable on any future dividend payment dates. Dividends on the shares
of each series of Preferred Stock for which dividends are cumulative will
accrue from the date on which the Company initially issues shares of such
series.
So long as the shares of any series of the Preferred Stock shall be
outstanding, unless (i) full dividends (including if such Preferred Stock is
cumulative, dividends for prior dividend periods) shall have been paid or
declared and set apart for payment on all outstanding shares of the Preferred
Stock of such series and all other series of preferred stock of the Company
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption or
mandatory repurchase or other mandatory retirement of, or with respect to any
sinking or other analogous fund for, any shares of Preferred Stock of such
series or any shares of any other preferred stock of the Company of any series
(other than Junior Stock), the Company may not declare any dividends on any
shares of Common Stock of the Company or any other stock of the Company
ranking as to dividends or distributions of assets junior to such series of
Preferred Stock (the Common Stock and any such other stock being herein
referred to as "Junior Stock"), or make any payment on account of, or set
apart money for, the purchase, redemption or other retirement of, or for a
sinking or other analogous fund for, any shares of Junior Stock or make any
distribution in respect thereof, whether in cash or property or in obligations
or stock of the Company, other than Junior Stock which is neither convertible
into, nor exchangeable or exercisable for, any securities of the Company other
than Junior Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company,
voluntary or involuntary, the holders of each series of the Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets or payment is
made to the holders of Common Stock or any other shares of stock of the
Company ranking junior as to such distribution or payment to such series of
Preferred Stock, the amount set forth in the Prospectus Supplement relating to
such series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable
with respect to the Preferred Stock of any series and any other shares of
preferred stock of the Company (including any other series of the Preferred
Stock) ranking as to any such distribution on a parity with such series of the
Preferred Stock are not paid in full, the holders of the Preferred Stock of
such series and of such other shares of preferred stock of the Company will
share ratably in any such distribution of assets of the Company in proportion
to the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series of the full
preferential amounts of the liquidating distribution to which they are
entitled, the holders of each such series of the Preferred Stock will be
entitled to no further participation in any distribution of assets by the
Company.
If such payment shall have been made in full to all holders of shares of
Preferred Stock, the remaining assets of the Company shall be distributed
among the holders of any other classes of stock ranking junior to the
Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
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REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms,
at the times and at the redemption prices set forth in the Prospectus
Supplement relating to such series. Shares of the Preferred Stock redeemed by
the Company will be restored to the status of authorized but unissued shares
of preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata (subject to rounding to avoid fractional shares) as may be determined
by the Company or by any other method as may be determined by the Company in
its sole discretion to be equitable. From and after the redemption date
(unless default shall be made by the Company in providing for the payment of
the redemption price plus accumulated and unpaid dividends, if any), dividends
shall cease to accumulate on the shares of the Preferred Stock called for
redemption and all rights of the holders thereof (except the right to receive
the redemption price plus accumulated and unpaid dividends, if any) shall
cease.
So long as any dividends on shares of any series of the Preferred Stock or
any other series of preferred stock of the Company ranking on a parity as to
dividends and distributions of assets with such series of the Preferred Stock
are in arrears, no shares of any such series of the Preferred Stock or such
other series of preferred stock of the Company will be redeemed (whether by
mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
shares; provided, however, that the foregoing will not prevent the purchase or
acquisition of such shares of Preferred Stock of such series or of shares of
such other series of preferred stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Preferred Stock
of such series, and, unless the full cumulative dividends on all outstanding
shares of any cumulative Preferred Stock of such series and any other stock of
the Company ranking on a parity with such series as to dividends and upon
liquidation shall have been paid or contemporaneously are declared and paid
for all past dividend periods, the Company shall not purchase or otherwise
acquire directly or indirectly any shares of Preferred Stock of such series
(except by conversion into or exchange for stock of the Company) ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of shares of
Preferred Stock to be redeemed at the address shown on the stock transfer
books of the Company. After the redemption date, dividends will cease to
accrue on the shares of Preferred Stock called for redemption and all rights
of the holders of such shares will terminate, except the right to receive the
redemption price without interest.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto. See "Description of Common Stock."
VOTING RIGHTS
Except as indicated below or in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
So long as any shares of Preferred Stock remain outstanding, the Company
shall not, without the consent or the affirmative vote of the holders of a
majority of the shares of each series of Preferred Stock outstanding at the
time given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class) (i) authorize, create or issue, or
increase the authorized or issued amount of, any series of stock ranking prior
to
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such series of Preferred Stock with respect to payment of dividends, or the
distribution of assets on liquidation, dissolution or winding up or
reclassifying any authorized stock of the Company into any such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares and (ii) to repeal, amend or
otherwise change any of the provisions applicable to the Preferred Stock of
such series in any manner which materially and adversely affects the powers,
preferences, voting power or other rights or privileges of such series of the
Preferred Stock or the holders thereof; provided, however, that any increase
in the amount of the authorized preferred stock or the creation or issuance of
other series of preferred stock, or any increase in the amount of authorized
shares of such series or of any other series of Preferred Stock, in each case
ranking on a parity with or junior to the Preferred Stock of such series,
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock shall have been
redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), not more than 50% in
value of its outstanding capital stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. To assist the Company in
meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities, including any Preferred Stock of the
Company. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to a series of Preferred Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent, dividend and redemption price disbursement agent and
registrar for shares of each series of the Preferred Stock will be set forth
in the Prospectus Supplement relating thereto.
DESCRIPTION OF COMMON STOCK
The authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock, par value $1.00 per share, and 50,000,000 shares of Preferred
Stock, par value $1.00 per share. The following description is qualified in
all respects by reference to the Charter Documents of the Company, a copy of
which was filed as an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994, the Amended and Restated Bylaws of
the Company, a copy of which was filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995, and the
Rights Agreement between the Company and Bank of New York (successor to
Chemical Trust Company of California), as Rights Agent.
COMMON STOCK
All shares of Common Stock participate equally in dividends payable to
holders of Common Stock when and as declared by the Board of Directors and in
net assets available for distribution to holders of Common Stock on
liquidation, dissolution, or winding up of the Company, have one vote per
share on all matters submitted to a vote of the stockholders and do not have
cumulative voting rights in the election of directors. All issued and
outstanding shares of Common Stock are, and the Common Stock offered hereby
will be upon issuance, validly issued, fully paid and nonassessable. Holders
of the Common Stock do not have preference, conversion, exchange or preemptive
rights. The Common Stock is listed on the New York Stock Exchange (NYSE
Symbol: HCP).
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STOCKHOLDER RIGHTS PLAN
On July 5, 1990, the Board of Directors of the Company declared a dividend
distribution of one right (each, a "Right") for each outstanding share of
Common Stock of the Company to stockholders of record at the close of business
on July 30, 1990. When exercisable, each Right entitles the registered holder
to purchase from the Company one share of the Company's Common Stock at a
price of $47.50 per share, subject to adjustment. Initially, the Rights will
be attached to all outstanding shares of Common Stock, and no separate Rights
Certificates will be distributed. The Board also authorized the issuance of
one Right with respect to each share of Common Stock that shall become
outstanding between July 30, 1990 and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date (all as defined in the
Rights Agreement). Each share of Common Stock offered hereby will have upon
issuance one Right attached.
The Rights will become exercisable and will detach from the Common Stock
upon the earlier of (i) the tenth day after the public announcement that any
person or group has acquired beneficial ownership of 15% or more of the
Company's Common Stock, or (ii) the tenth day after any person or group
commences, or announces an intention to commence, a tender or exchange offer
which, if consummated, would result in the beneficial ownership by a person or
group of 30% or more of the Company's Common Stock (the earlier of (i) and
(ii) being the "Distribution Date"). If such person or group acquires
beneficial ownership of 15% or more of the Company's Common Stock (except
pursuant to certain cash tender offers for all outstanding Common Stock
approved by the Board of Directors) or if the Company is the surviving
corporation in a merger and its Common Stock is not changed or exchanged, each
Right will entitle the holder to purchase, at the Right's then current
exercise price, that number of shares of the Company's Common Stock having a
market value equal to twice the exercise price. Similarly, if after the Rights
become exercisable, the Company merges or consolidates with, or sells 50% or
more of its assets or earning power to, another person, each Right will then
entitle the holder to purchase, at the Right's then current exercise price,
that number of shares of the stock of the acquiring company which at the time
of such transaction would have a market value equal to twice the exercise
price.
The Rights may be redeemed in whole, but not in part, at a price of $0.01
per Right by the Board of Directors at any time until ten days following the
public announcement that a person or group has acquired beneficial ownership
of 15% or more of the Company's outstanding Common Stock. The Board of
Directors may, under certain circumstances, extend the period during which the
Rights are redeemable or postpone the Distribution Date. The Rights will
expire on July 30, 2000, unless earlier redeemed.
TRANSFER RESTRICTIONS, REDEMPTION AND BUSINESS COMBINATION PROVISIONS
If the Board of Directors shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of more than 9.9% or more of the
voting shares of capital stock has or may become concentrated in the hands of
one beneficial owner, the Board of Directors shall have the power (i) by lot
or other means deemed equitable by it to call for the purchase from any
stockholder of the Company a number of voting shares sufficient, in the
opinion of the Board of Directors, to maintain or bring the direct or indirect
ownership of voting shares of capital stock of such beneficial owner to a
level of no more than 9.9% of the outstanding voting shares of the Company's
capital stock, and (ii) to refuse to transfer or issue voting shares of
capital stock to any person whose acquisition of such voting shares would, in
the opinion of the Board of Directors, result in the direct or indirect
ownership by that person of more than 9.9% of the outstanding voting shares of
capital stock of the Company. Further, any transfer of shares, options,
warrants, or other securities convertible into voting shares that would create
a beneficial owner of more than 9.9% of the outstanding voting shares shall be
deemed void ab initio and the intended transferee shall be deemed never to
have had an interest therein. The purchase price for any voting shares of
capital stock so redeemed shall be equal to the fair market value of the
shares reflected in the closing sales price for the shares, if then listed on
a national securities exchange, or the average of the closing sales prices for
the shares if then listed on more than one national securities exchange, or if
the shares are not then listed on a national securities exchange, the latest
bid quotation for the shares if then traded over-the-counter, on the last
business day immediately preceding the day on which notices of such
acquisitions are sent by the Company, or, if no such closing sales prices or
quotations are available, then the purchase price shall be equal to
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the net asset value of such stock as determined by the Board of Directors in
accordance with the provisions of applicable law. From and after the date
fixed for purchase by the Board of Directors, the holder of any shares so
called for purchase shall cease to be entitled to distributions, voting rights
and other benefits with respect to such shares, except the right to payment of
the purchase price for the shares.
The Charter Documents require that, except in certain circumstances,
Business Combinations (as defined below) between the Company and a beneficial
holder of 10% or more of the Company's outstanding voting stock (a "Related
Person") be approved by the affirmative vote of at least 90% of the
outstanding voting shares of the Company.
A Business Combination is defined in the Charter Documents as (a) any merger
or consolidation of the Company with or into a Related Person, (b) any sale,
lease, exchange, transfer or other disposition, including without limitation a
mortgage or any other security device, of all or any "Substantial Part" (as
defined below) of the assets of the Company (including without limitation any
voting securities of a subsidiary) to a Related Person, (c) any merger or
consolidation of a Related Person with or into the Company, (d) any sale,
lease, exchange, transfer or other disposition of all or any Substantial Part
of the assets of a Related Person to the Company, (e) the issuance of any
securities (other than by way of pro rata distribution to all stockholders) of
the Company to a Related Person, and (f) any agreement, contract or other
arrangement providing for any of the transactions described in the definition
of Business Combination. The term "Substantial Part" shall mean more than 10%
of the book value of the total assets of the Company as of the end of its most
recent fiscal year ending prior to the time the determination is being made.
The foregoing provisions of the Charter Documents and certain other matters
may not be amended without the affirmative vote of at least 90% of the
outstanding voting shares of the Company.
The Rights and the foregoing provisions may have the effect of discouraging
unilateral tender offers or other takeover proposals which certain
stockholders might deem to be in their interests or in which they might
receive a substantial premium. The Board of Directors' authority to issue and
establish the terms of currently authorized Preferred Stock, without
stockholder approval, may also have the effect of discouraging takeover
attempts. See "Description of Preferred Stock." The Rights and the foregoing
provisions could also have the effect of insulating current management against
the possibility of removal and could, by possibly reducing temporary
fluctuations in market price caused by accumulations of shares of Common
Stock, deprive stockholders of opportunities to sell at a temporarily higher
market price. However, the Board of Directors believes that inclusion of the
Business Combination provisions in the Charter Documents and the Rights may
help assure fair treatment of stockholders and preserve the assets of the
Company.
The foregoing summary of certain provisions of the Rights and the Charter
Documents does not purport to be complete or to give effect to provisions of
statutory or common law. The foregoing summary is subject to, and qualified in
its entirety by reference to, the provisions of applicable law and, the
Charter Documents and the Rights Agreement, copies of which are incorporated
by reference as exhibits to the Registration Statement of which this
Prospectus is a part.
TRANSFER AGENT AND REGISTRAR
Bank of New York acts as transfer agent and registrar of the Common Stock.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS TO THE COMPANY
The following summary of certain federal income tax considerations to the
Company is based on current law, is for general information only, and is not
tax advice. The tax treatment of a holder of any of the Securities will vary
depending upon the terms of the specific Securities acquired by such holder,
as well as his particular situation, and this discussion does not attempt to
address any aspects of federal income taxation relating to holders of
Securities. Certain federal income tax considerations relevant to holders of
the Securities will be provided in the applicable Prospectus Supplement
relating thereto.
EACH INVESTOR IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS SUPPLEMENT, AS
WELL AS HIS OWN TAX ADVISOR, REGARDING THE TAX CONSEQUENCES TO HIM OF THE
ACQUISITION, OWNERSHIP AND SALE OF THE SECURITIES, INCLUDING THE FEDERAL,
STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION,
OWNERSHIP AND SALE AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY AS A REIT
General. The Company elected to be taxed as a real estate investment trust
under Sections 856 through 860 of the Code, commencing with its taxable year
ended December 31, 1985. The Company believes that, commencing with its
taxable year ended December 31, 1985, it has been organized and has operated
in such a manner as to qualify for taxation as a REIT under the Code, and the
Company intends to continue to operate in such a manner, but no assurance can
be given that it has operated or will operate in a manner so as to qualify or
remain qualified.
These sections of the Code are highly technical and complex. The following
sets forth the material aspects of the sections that govern the federal income
tax treatment of a REIT. This summary is qualified in its entirety by the
applicable Code provisions, rules and regulations promulgated thereunder, and
administrative and judicial interpretations thereof. Latham & Watkins has
acted as tax counsel to the Company in connection with this Prospectus and the
Company's election to be taxed as a REIT.
Latham & Watkins rendered an opinion to the Company as of June 18, 1997 to
the effect that commencing with the Company's taxable year ended December 31,
1985, the Company was organized in conformity with the requirements for
qualification as a REIT, and its proposed method of operation would enable it
to continue to meet the requirements for qualification and taxation as a REIT
under the Code. It must be emphasized that this opinion was based on various
assumptions and was conditioned upon certain representations made by the
Company as to factual matters and that Latham & Watkins undertook no
obligation to update this opinion subsequent to such date. In addition, this
opinion was based upon the factual representations of the Company as set forth
in this Prospectus. Moreover, such qualification and taxation as a REIT
depends upon the Company's ability to meet (through actual annual operating
results, distribution levels and diversity of stock ownership) the various
qualification tests imposed under the Code discussed below, the results of
which have not been and will not be reviewed by Latham & Watkins. Accordingly,
no assurance can be given that the actual results of the Company's operation
in any particular taxable year will satisfy such requirements. See "--Failure
to Qualify."
If the Company qualifies for taxation as a REIT, it generally will not be
subject to federal corporate income taxes on its net income that is currently
distributed to stockholders. This treatment substantially eliminates the
"double taxation" (at the corporate and stockholder levels) that generally
results from investment in a regular corporation. However, the Company will be
subject to federal income tax as follows: First, the Company will be taxed at
regular corporate rates on any undistributed real estate investment trust
taxable income, including undistributed net capital gains. Second, under
certain circumstances, the Company may be subject to the "alternative minimum
tax" on its items of tax preference. Third, if the Company has (i) net income
from the sale or other disposition of "foreclosure property" which is held
primarily for sale to customers in the ordinary course of business or (ii)
other non-qualifying income from foreclosure property, it will be subject to
tax at the
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<PAGE>
highest corporate rate on such income. Fourth, if the Company has net income
from prohibited transactions (which are, in general, certain sales or other
dispositions of property held primarily for sale to customers in the ordinary
course of business other than foreclosure property), such income will be
subject to a 100% tax. Fifth, if the Company should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed below), but has
nonetheless maintained its qualification as a real estate investment trust
because certain other requirements have been met, it will be subject to a 100%
tax on an amount equal to (a) the gross income attributable to the greater of
the amount by which the Company fails the 75% or 95% test, multiplied by (b) a
fraction intended to reflect the Company's profitability. Sixth, if the
Company should fail to distribute during each calendar year at least the sum
of (i) 85% of its real estate investment trust ordinary income for such year,
(ii) 95% of its real estate investment trust capital gain net income for such
year, and (iii) any undistributed taxable income from prior periods, the
Company would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Seventh, with respect to
any asset (a "Built-in Gain Asset") acquired by the Company from a corporation
which is or has been a C corporation (i.e., generally a corporation subject to
full corporate-level tax) in certain transactions in which the basis of the
Built-in Gain Asset in the hands of the Company is determined by reference to
the basis of the asset in the hands of the C corporation, if the Company
recognizes gain on the disposition of such asset during the 10-year period
(the "Recognition Period") beginning on the date on which such asset was
acquired by the Company, then, to the extent of the Built-in Gain (i.e., the
excess of (a) the fair market value of such asset over (b) the Company's
adjusted basis in such asset, determined as of the beginning of the
Recognition Period), such gain would be subject to tax at the highest regular
corporate rate pursuant to Treasury Regulations that have not yet been
promulgated. As provided in IRS Notice 88-19, the results described above with
respect to the recognition of Built-in Gain assume that the Company would make
an election under Treasury Regulations that have not yet been promulgated.
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association (1) which is managed by one or more trustees or
directors, (2) the beneficial ownership of which is evidenced by transferable
shares, or by transferable certificates of beneficial interest, (3) which
would be taxable as a domestic corporation, but for Sections 856 through 859
of the Code, (4) which is neither a financial institution nor an insurance
company subject to certain provisions of the Code, (5) the beneficial
ownership of which is held by 100 or more persons, (6) at anytime during the
last half of each taxable year, not more than 50% in value of the outstanding
stock of which is owned, actually or constructively, by five or fewer
individuals (as defined in the Code to include certain entities) and (7) which
meets certain other tests, described below, regarding the nature of its income
and assets. The Code provides that conditions (1) to (4) must be met during
the entire taxable year and that condition (5) must be met during at least 335
days of a taxable year of 12 months, or during a proportionate part of a
taxable year of less than 12 months. Conditions (5) and (6) will not apply
until after the first taxable year for which an election is made to be taxed
as a real estate investment trust.
The Company believes it has satisfied conditions (5) and (6). In addition,
the Company's Charter Documents provide for restrictions regarding transfer of
the Company's capital stock, which restrictions are intended to assist the
Company in continuing to satisfy the share ownership requirement described in
(6) above. Such transfer restrictions are described in "Transfer Restrictions,
Redemption and Business Combination Provisions." There can be no assurance,
however, that such transfer restrictions will, in all cases, prevent a
violation of the stock ownership provisions described in (6) above. The
ownership and transfer restrictions pertaining to a particular class or series
of capital stock will be described in the applicable Prospectus Supplement
pertaining to such class or series.
The Company owns interests in various partnerships. In the case of a REIT
that is a partner in a partnership, Treasury Regulations provide that the REIT
will be deemed to own its proportionate share of the assets of the partnership
and will be deemed to be entitled to the income of the partnership
attributable to such share. In addition, the character of the assets and gross
income of the partnership will retain the same character in the hands of the
real estate investment trust for purposes of Section 856 of the Code,
including satisfying the gross income tests and the asset tests. Thus, the
Company's proportionate share of the assets, liabilities and items of income
of the partnerships in which the Company is a partner will be treated as
assets, liabilities and items of income of the Company for purposes of
applying the requirements described herein.
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The Company owns and operates a number of properties through subsidiaries.
Code Section 856(i) provides that a corporation which is a "qualified REIT
subsidiary" shall not be treated as a separate corporation, and all assets,
liabilities, and items of income, deduction and credit of a "qualified REIT
subsidiary" shall be treated as assets, liabilities and such items (as the
case may be) of the REIT. Thus, in applying the requirements described herein,
the Company's "qualified REIT subsidiaries" will be ignored, and all assets,
liabilities and items of income, deduction and credit of such subsidiaries
will be treated as assets, liabilities and items of the Company. A qualified
REIT subsidiary will not be subject to federal income tax and the Company's
ownership of the voting stock of a qualified REIT subsidiary will not violate
the restrictions against ownership of securities of any one issuer which
constitutes more than 10% of such issuer's voting securities or more than 5%
of the value of the Company's total assets.
Income Tests. In order to maintain qualification as a REIT, the Company
annually must satisfy three gross income requirements. First, at least 75% of
the Company's gross income (excluding gross income from prohibited
transactions) for each taxable year must be derived directly or indirectly
from investments relating to real property or mortgages on real property
(including "rents from real property" and, in certain circumstances, interest)
or from certain types of temporary investments. Second, at least 95% of the
Company's gross income (excluding gross income from prohibited transactions)
for each taxable year must be derived from such real property investments,
dividends, interest and gain from the sale or disposition of stock or
securities (or from any combination of the foregoing). Third, short-term gain
from the sale or other disposition of stock or securities, gain from
prohibited transactions and gain on the sale or other disposition of real
property held for less than four years (apart from involuntary conversions and
sales of foreclosure property) must represent less than 30% of the Company's
gross income (including gross income from prohibited transactions) for each
taxable year.
Rents received by the Company will qualify as "rents from real property" in
satisfying the gross income requirements for a real estate investment trust
described above only if several conditions are met. First, the amount of rent
must not be based in whole or in part on the income or profits of any person.
However, an amount received or accrued generally will not be excluded from the
term "rents from real property" solely by reason of being based on a fixed
percentage or percentages of receipts or sales. Second, the Code provides that
rents received from a tenant will not qualify as "rents from real property" in
satisfying the gross income tests if the real estate investment trust, or an
owner of 10% or more of the real estate investment trust, actually or
constructively owns 10% or more of such tenant (a "Related Party Tenant").
Third, if rent attributable to personal property leased in connection with a
lease of real property is greater than 15% of the total rent received under
the lease, then the portion of rent attributable to such personal property
will not qualify as "rents from real property." Finally, for rents received to
qualify as "rents from real property," the real estate investment trust
generally must not operate or manage the property or furnish or render
services to the tenants of such property, other than through an independent
contractor from whom the real estate investment trust derives no revenue;
provided, however, the Company may directly perform certain services that are
"usually or customarily rendered" in connection with the rental of space for
occupancy only and are not otherwise considered "rendered to the occupant" of
the property. The Company has represented that it does not and will not (i)
charge rent for any property that is based in whole or in part on the income
or profits of any person (except by reason of being based on a percentage of
receipts or sales, as described above), (ii) rent any property to a Related
Party Tenant, (iii) derive rental income attributable to personal property
(other than personal property leased in connection with the lease of real
property, the amount of which is less than 15% of the total rent received
under the lease), or (iv) perform services considered to be rendered to the
occupant of the property, other than through an independent contractor from
whom the Company derives no revenue.
The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends
in whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or percentages of
receipts or sales.
The Company expects to recognize income from the performance of certain
management and administrative services relating to the partnerships in which
it owns interests. At least a portion of this income will not be qualifying
income under the 95% and 75% gross income tests described above. The Company
believes that the
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aggregate amount of this service income (and any other nonqualifying income)
in any taxable year will not exceed the limits on nonqualifying income under
the gross income tests described above.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a real estate
investment trust for such year if it is entitled to relief under certain
provisions of the Code. These relief provisions will generally be available if
the Company's failure to meet such tests was due to reasonable cause and not
due to willful neglect, the Company attaches a schedule of the sources of its
income to its federal income tax return, and any incorrect information on the
schedule was not due to fraud with intent to evade tax. It is not possible,
however, to state whether in all circumstances the Company would be entitled
to the benefit of these relief provisions. As discussed above under "--
General," even if these relief provisions apply, a tax would be imposed with
respect to the excess net income.
Asset Tests. The Company, at the close of each quarter of its taxable year,
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets must be represented by
real estate assets (including (i) assets held by the Company's qualified REIT
subsidiaries and the Company's allocable share of real estate assets held by
partnerships in which the Company owns an interest and (ii) stock or debt
instruments held for not more than one year purchased with the proceeds of a
stock offering or a long-term (at least five years) public debt offering of
the Company), cash, cash items and government securities. Second, not more
than 25% of the Company's total assets may be represented by securities other
than those in the 75% asset class. Third, of the investments included in the
25% asset class, the value of any one issuer's securities owned by the Company
may not exceed 5% of the value of the Company's total assets and the Company
may not own more than 10% of any one issuer's outstanding voting securities.
Annual Distribution Requirements. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends)
to its stockholders in an amount at least equal to (A) the sum of (i) 95% of
the Company's "REIT taxable income" (computed without regard to the dividends
paid deduction and the Company's net capital gain) and (ii) 95% of the net
income (after tax), if any, from foreclosure property, minus (B) the sum of
certain items of non-cash income. In addition, if the Company disposes of any
Built-in Gain Asset during its Recognition Period, the Company would be
required, pursuant to IRS regulations which have not yet been promulgated, to
distribute at least 95% of the Built-in Gain (after tax), if any, recognized
on the disposition of such asset. Such distributions must be paid in the
taxable year to which they relate, or in the following taxable year if
declared before the Company timely files its tax return for such year and if
paid on or before the first regular dividend payment after such declaration.
To the extent that the Company does not distribute all of its net capital gain
or distributes at least 95%, but less than 100%, of its REIT taxable income,
as adjusted, it will be subject to tax thereon at regular ordinary and capital
gain corporate tax rates.
It is possible that the Company, from time to time, may not have sufficient
cash or other liquid assets to meet the 95% distribution requirement due to
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of such income and deduction of
such expenses in arriving at taxable income of the Company. In the event that
such timing differences occur, in order to meet the 95% distribution
requirement, the Company may find it necessary to arrange for short-term, or
possibly long-term, borrowings or to pay dividends in the form of taxable
stock dividends.
Under certain circumstances, the Company may be able to rectify a failure to
meet the above distribution requirements for a year by paying "deficiency
dividends" to stockholders in a later year, which may be included in the
Company's deduction for dividends paid for the earlier year. Thus, the Company
may be able to avoid being taxed on amounts distributed as deficiency
dividends; however, the Company will be required to pay interest based upon
the amount of any deduction taken for deficiency dividends.
Furthermore, if the Company should fail to distribute during each calendar
year at least the sum of (1) 85% of its real estate investment trust ordinary
income for such year, (ii) 95% of its real estate investment trust capital
gain income for such year, and (iii) any undistributed taxable income from
prior periods, the Company would be subject to a 4% excise tax on the excess
of such required distribution over the amounts actually distributed. The
Company intends to make timely distributions sufficient to satisfy the annual
distribution requirements set forth above.
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TAX RISKS ASSOCIATED WITH THE PARTNERSHIPS
The Company owns interests in various partnerships. The ownership of an
interest in a partnership may involve special tax risks, including the
possible challenge by the IRS of (i) allocations of income and expense items,
which could affect the computation of taxable income of the Company, and (ii)
the status of a partnership as a partnership (as opposed to an association
taxable as a corporation) for federal income tax purposes. If any of the
partnerships were treated as an association taxable as a corporation for
federal income tax purposes, the partnership would be treated as a taxable
entity. In addition, in such a situation, (i) if the Company owned more than
10% of the outstanding voting securities of such partnership, or the value of
such securities exceeded 5% of the value of the Company's assets, the Company
would fail to satisfy the asset tests described above and would therefore fail
to qualify as a REIT, (ii) distributions from any such partnership to the
Company would be treated as dividends, which are not taken into account in
satisfying the 75% gross income test described above and could, therefore,
make it more difficult for the Company to satisfy such test, (iii) the
interest in any such partnership held by the Company would not qualify as a
"real estate asset," which could make it more difficult for the Company to
meet the 75% asset test described above, and (iv) the Company would not be
able to deduct its share of any losses generated by the partnerships in
computing its taxable income. See "--Failure to Qualify" for a discussion of
the effect of the Company's failure to meet such tests for a taxable year. The
Company believes that each of the partnerships in which the Company owns an
interest will be treated for tax purposes as a partnership (rather than an
association taxable as a corporation). No assurance can be given that the IRS
will not successfully challenge the status of the partnerships as
partnerships.
FAILURE TO QUALIFY
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Such a failure to qualify for taxation as a REIT
would reduce the cash available for distribution by the Company to
stockholders and to pay debt service and could have an adverse effect on the
market value and marketability of the Securities. Distributions to
stockholders in any year in which the Company fails to qualify will not be
deductible by the Company nor will they be required to be made. In such event,
to the extent of current and accumulated earnings and profits, all
distributions to stockholders will be taxable as ordinary income and, subject
to certain limitations of the Code, corporate distributees may be eligible for
the dividends received deduction. Unless entitled to relief under specific
statutory provisions, the Company will also be disqualified from taxation as a
REIT for the four taxable years following the year during which qualification
was lost. It is not possible to state whether in all circumstances the Company
would be entitled to such statutory relief.
STATE AND LOCAL TAXES
The Company may be subject to state or local taxes in other jurisdictions
such as those in which the Company may be deemed to be engaged in activities
or own property or other interests. Such tax treatment of the Company in
states having taxing jurisdiction over it may differ from the federal income
tax treatment described in this summary.
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PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby directly or through
agents, underwriters or dealers, which may include Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Unless otherwise indicated in
the applicable Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. The Company may also sell
Securities to an agent as principal. Agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and may be customers of, engage in transactions with or perform services for
the Company in the ordinary course of business.
If any underwriters are utilized in the sale of Securities in respect of
which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters and the names of the
underwriters and the terms of the transaction will be set forth in the
applicable Prospectus Supplement, which will be used by the underwriters to
make resales of the Securities in respect of which this Prospectus is
delivered to the public. Underwriters may offer and sell the Securities at a
fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
Dealers may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
Securities may also be offered and sold, if so indicated in any Prospectus
Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or
otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company. Any remarketing firm will
be identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the applicable Prospectus Supplement.
Remarketing firms may be deemed to be underwriters in connection with the
Securities remarketed thereby. Remarketing firms may be entitled under
agreements which may be entered into with the Company to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
If so indicated in any Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to only those conditions set forth in the applicable Prospectus
Supplement, and such Prospectus Supplement will set forth the commission
payable for solicitation of such offers.
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LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Latham & Watkins, Los Angeles, California.
Brown & Wood LLP, Los Angeles, California, will act as counsel for any agents
or underwriters. Paul C. Pringle is a partner of Brown & Wood LLP and owns
3,000 shares of the Company's Common Stock.
EXPERTS
The financial statements incorporated by reference in this Prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting discounts and commissions,
in connection with this offering are estimated as follows:
<TABLE>
<S> <C>
SEC Registration Fee............................................. $ 90,910
Blue Sky fees and expense........................................ 5,000
Printing and shipping expenses................................... 150,000
Legal fees and expenses.......................................... 150,000
Accounting fees and expenses..................................... 50,000
Transfer agent or trustee fees................................... 10,000
Listing Fees..................................................... 50,000
Miscellaneous.................................................... 34,090
--------
Total........................................................ $540,000
========
</TABLE>
ITEM 15. INDEMNIFICATIONS OF DIRECTORS AND OFFICERS.
The Company's Articles of Restatement (the "Charter Documents") limit the
liability of the Company's directors and officers to the Company and its
shareholders to the fullest extent permitted by the laws of the State of
Maryland. Maryland law presently permits the liability of directors and
officers to a corporation or its shareholders for money damages to be limited,
except (i) to the extent that it is proved that the director or officer
actually received an improper benefit or profit or (ii) if the judgment or
other final adjudication is entered in a proceeding based on a finding that
the directors or officers action, or failure to act, was a result of active or
deliberate dishonesty and was material to the cause of action adjudicated in
the proceeding. The provisions of the Charter Documents do not limit the
ability of the Company or its shareholders to obtain other relief, such as
injunction or recision.
The Charter Documents provide for indemnification of directors and officers
to the full extent permitted by the laws of the State of Maryland.
Article X of the Company's Amended and Restated By-Laws (the "By-Laws")
provides that the Company shall indemnify and hold harmless, in the manner and
to the fullest extent permitted by law, any person who is or was a party to,
or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the Company,
and whether civil, criminal, administrative, investigative or otherwise, by
reason of the fact that such person is or was a director or officer of the
Company, or, as a director or officer of the Company, is or was serving at the
request of the Company as a director, officer, trustee, partner, member, agent
or employee of another corporation, partnership, limited liability company,
association, joint venture, trust, benefit plan or other enterprise.
Article X of the By-Laws further provides that the Company may, with the
approval of the Board of Directors, provide such indemnification and
advancement of expenses as set forth in the above paragraph to agents and
employees of the Company.
Section 2-418 of the Maryland General Corporation Law generally permits
indemnification of any director or officer made a party to any proceedings by
reason of service as a director or officer unless it is established that (i)
the act or omission of such person was material to the matter giving rise to
the proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty; or (ii) such person actually received an improper
personal benefit in money, property or services; or (iii) in the case of any
criminal proceeding, such person had reasonable cause to believe that the act
or omission was unlawful. The indemnity may include judgments, penalties,
fines, settlements and reasonable expenses actually incurred by the director
or officer in connection with the proceeding; provided, however, that if the
proceeding is one by, or in the right of the
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corporation, indemnification is not permitted with respect to any proceeding
in which the director or officer has been adjudged to be liable to the
corporation. In addition, a director or officer may not be indemnified with
respect to any proceeding charging improper personal benefit to the director
or officer adjudged to be liable on the basis that personal benefit was
improperly received. The termination of any proceeding by conviction or upon a
plea of nolo contendere or its equivalent creates a rebuttable presumption
that the director or officer did not meet the requisite standard of conduct
required for permitted indemnification. The termination of any proceeding by
judgment, order or settlement, however, does not create a presumption that the
director or officer failed to meet the requisite standard of conduct for
permitted indemnification.
The Company has provided for the benefit of its directors and officers, a
Directors and Officers Liability Policy.
ITEM 16. EXHIBITS.
See Exhibit Index.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act"):
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission (the "Commission") pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set for the in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
II-2
<PAGE>
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act (the "TIA") in
accordance with the rules and regulations prescribed by the Commission
under section 305(b)(2) of the TIA.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF LOS
ANGELES, STATE OF CALIFORNIA, ON THE 17TH DAY OF JUNE, 1997.
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ Kenneth B. Roath
__________________________________
Kenneth B. Roath
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Kenneth B. Roath and
James G. Reynolds, and both or either of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and any subsequent registration
statement thereto pursuant to Rule 462(b) of the Securities Act, and to file
the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the foregoing, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or either of them or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON
THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Kenneth B. Roath Chairman, President, Chief June 17, 1997
____________________________________ Executive Officer and
Kenneth B. Roath Director (Principal
Executive Officer)
/s/ James G. Reynolds Executive Vice President and June 17, 1997
____________________________________ Chief Financial Officer
James G. Reynolds (Principal Financial
Officer)
/s/ Devasis Ghose Senior Vice President and June 17, 1997
____________________________________ Treasurer (Principal
Devasis Ghose Accounting Officer)
Director
__________________________________
Paul V. Colony
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert R. Fanning, Jr. Director June 17, 1997
____________________________________
Robert R. Fanning, Jr.
/s/ Michael D. McKee Director June 17, 1997
____________________________________
Michael D. McKee
/s/ Orville E. Melby Director June 17, 1997
____________________________________
Orville E. Melby
/s/ Harold M. Messmer, Jr. Director June 17, 1997
____________________________________
Harold M. Messmer, Jr.
/s/ Peter L. Rhein Director June 17, 1997
____________________________________
Peter L. Rhein
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
1.1 Form of Distribution Agreement for Medium Term Notes.
1.2 Form of Purchase Agreement for Notes.
1.3 Form of Purchase Agreement for Common Stock.
1.4 Form of Purchase Agreement for Preferred Stock.
4.1 Articles of Restatement of the Company (incorporated
herein by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December
31, 1994).
4.2 Amended and Restated Bylaws of the Company
(incorporated herein by reference to Exhibit 3(ii) of
the Company's Quarterly Report on Form 10-Q for the
period ended June 30, 1995).
4.3 Rights Agreement, dated as of July 5, 1990, between the
Company and Manufacturers Hanover Trust Company of
California, as Rights Agent (incorporated herein by
reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A filed with the Commission on July
17, 1990).
4.4 Indenture dated as of September 1, 1993 between the
Company and The Bank of New York, as Trustee
(incorporated herein by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K dated September 9,
1993).
5.1 Opinion of Latham & Watkins as to the validity of the
Securities.
8.1 Opinion of Latham & Watkins re: tax matters.
12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
23.3 Consent of Latham & Watkins (included in Exhibit 8.1).
24.1 Power of Attorney (contained on page II-4).
25.1 Statement of Eligibility and Qualification on Form T-1.
</TABLE>
<PAGE>
Exhibit 1.1
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland Corporation)
Medium-Term Notes, Series C
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
. ., 199.
_______________________________
_______________________________
_______________________________
_______________________________
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and NationsBanc
Capital Markets Inc. (each an "Agent" and, collectively, the "Agents") with
respect to the issue and sale by the Company of its Medium-Term Notes described
herein (the "Notes"). The Notes are to be issued pursuant to an indenture (the
"Indenture", which term as used herein includes any instrument establishing the
form and terms of the Notes) dated as of September 1, 1993 between the Company
and The Bank of New York, as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale of
up to $ aggregate initial offering price of Notes to or through the
Agents pursuant to the terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or distributed through the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more of the Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent) in which case the
applicable Agent will act as agent of the Company in soliciting Note purchases.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-66676) for the
registration of $__________ aggregate offering price of common stock, par value
$1.00 per share, preferred stock, par value $1.00 per share and debt securities,
including the Notes, under the Securities Act of 1933, as amended (the "1933
Act") and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplements relating to the
Notes, including all documents incorporated therein by reference, as from time
to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus and/or
prospectus supplement relating to the Notes shall be provided to the Agent by
the Company for use in connection with the offering of the Notes, whether or not
such revised prospectus and/or prospectus supplement relating to the Notes 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 and/or
prospectus supplement relating to the Notes from and after the time it is first
provided to the Agents for such use. Notwithstanding the foregoing, for
purposes of this Agreement any prospectus supplement prepared with respect to
the offering of a series of debt securities other than the Notes shall not be
deemed to have supplemented the Prospectus.
SECTION 1. Appointment as Agent.
--------------------
(a) Appointment. Subject to the terms and conditions stated herein and
-----------
subject to the reservation by the Company of the right to appoint, upon . days'
prior written notice to the Agents, additional persons as "Agents" hereunder
(provided that each such additional person agrees to be bound by all of the
terms of this Agreement (including Schedule A)), the Company hereby agrees that
Notes will be sold exclusively to or through the Agents. Each Agent is
authorized to engage the services of any other broker or dealer in connection
with the offer or sale of the Notes purchased by such Agent as principal for
resale to others but is not authorized to appoint sub-agents. In connection
with sales by the Agents of Notes purchased by the Agents as principal to other
brokers or dealers, the Agents may allot any portion of the discount they have
received in connection with such purchase from the Company to such brokers or
dealers. The Company agrees that during the period the Agents are acting as the
Company's agents hereunder, the Company will not contact or solicit potential
investors to purchase the Notes. Notwithstanding anything to the contrary
contained herein, the Company may accept offers to purchase Notes through an
agent other than the Agents if (i) the Company shall not have solicited such
offers, (ii) the Company and such agent shall have entered into an agreement
with the same terms as this Agreement (including Schedule A) and (iii) the
Company shall have notified the Agents promptly after the
2
<PAGE>
acceptance of any such offer and shall have provided the Agents with a copy of
such agreement in written form promptly following the execution thereof.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
-------------
of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
(c) Purchases as Principal. No Agent shall have any obligation to purchase
----------------------
Notes from the Company as principal, but each Agent may agree from time to time
to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the Company,
----------------------
such Agent acting solely as agent for the Company and not as principal will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes solicited by such
Agent on an agency basis, other than those offers rejected by such Agent. Such
Agent shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject any proposed purchase of the Notes, in whole or in
part, and any such rejection shall not be deemed a breach of the Company's
agreement contained herein. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company. Such Agent
shall not have any liability to the Company in the event any such agency
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to such Agent any commission to which it would
be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any Notes purchased by
--------
an Agent shall be purchased, and any Notes the placement of which an Agent
arranges shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether from such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal being hereafter referred to as a "Settlement
3
<PAGE>
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the Commission any
document incorporated by reference into the Prospectus (each of the times
referenced above being referred to herein as a "Representation Date") as
follows:
(i) Due Incorporation and Qualification. The Company (A) 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; (B) has the requisite corporate power and
authority to execute and deliver this Agreement, the Indenture and the
Notes and to perform its obligations hereunder and thereunder; (C) has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes the valid and binding agreement of the Company; (D) 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; (E) 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 is such state; and (F) has at all times operated in
such manner as to qualify as a "real estate investment trust" under the
Internal Revenue Code of 1986 (the "Code") and intends to continue to
operate in such manner.
(ii) Subsidiaries. Each subsidiary of the Company which is a
------------
significant subsidiary (each, a "Significant Subsidiary") as defined in
Rule 405 of Regulation C of the 1933 Act Regulations has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify 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 all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
-------------------------------------
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the
4
<PAGE>
rules and regulations of the Commission promulgated thereunder (the "1939
Act Regulations"). The Registration Statement, at the time it became
effective, did not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or any Annual Report on Form
10-K is filed by the Company with the Commission and as of each
Representation Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus,
as of the date hereof does not, and as of each Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
-------- -------
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement that constitutes the Statement of
Eligibility of the Trustee under the 1939 Act filed as an exhibit to the
Registration Statement (the "Form T-1").
(iv) Incorporated Documents. The documents incorporated by reference
----------------------
into the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, did 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
or are made, not misleading.
(v) Accountants. The accountants who certified the financial
-----------
statements and supporting schedules included or incorporated by reference
in the Registration Statement and Prospectus are independent public
accountants within the meaning of the 1933 Act and the 1933 Act
Regulations.
(vi) 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
consolidated results of their operations for the periods specified; and,
except as 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 in the Registration Statement present fairly
the information required to be stated 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.
5
<PAGE>
(vii) Authorization and Validity of this Agreement, the Indenture
-----------------------------------------------------------
and the Notes. This Agreement has been duly authorized, executed and
-------------
delivered by the Company and, upon execution and delivery by the Agents,
will be a valid and legally binding agreement of the Company; the Indenture
has been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Trustee, will be 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 Notes have
been duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or agreed upon pursuant
to the provisions of this Agreement, the Notes 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; the
Notes and the Indenture will be substantially in the form heretofore
delivered to the Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each holder of
Notes will be entitled to the benefits of the Indenture.
(viii) Material Changes or Material Transactions. Since the
-----------------------------------------
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be 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 and
(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.
(ix) No Defaults. Neither the Company nor any of its subsidiaries is
-----------
in violation of its charter 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 it is a party or by which it or any of them or their
properties may be bound, which 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; the execution and delivery of this Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate
action and will not conflict with or constitute a material breach of, or
material 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
6
<PAGE>
the property or assets of the Company or any such subsidiary is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree;
(x) No Authorization, Approval or Consent Required. No consent,
----------------------------------------------
approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the sale
of Notes hereunder, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities ("Blue Sky") laws.
(xi) Legal Proceedings; Contracts. 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 might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the consummation of
this Agreement or the Indenture or any transaction contemplated hereby or
thereby; all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their property or
assets is the subject which are not described 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 as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(xii) Good Title. The Company has good title to all real property or
----------
interests in real property owned by it, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Registration Statement or such as do not materially adversely affect the
value of such property and interests and do not interfere with the use made
and proposed to be made of such property and interests by the Company; the
Company has 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 is otherwise
described in the Registration Statement, (A) that the Company has the
foregoing title to such real property and interests in real property, and
(B) that the instruments securing the Company's 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 materially adverse effect on the value of such real properties and
interests; and no material real property and buildings are held under lease
by the Company.
7
<PAGE>
(xiii) Investment Company Act. The Company is not required to be
----------------------
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xiv) Cuba Disclosure. The Company has complied with, and is and
---------------
will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any director or
-------------------------
officer of the Company and delivered to an Agent or to counsel for the Agents in
connection with an offering of Notes through an Agent as agent or the sale of
Notes to an Agent as principal shall be deemed a representation and warranty by
the Company to the Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
----------------------
Company, Notes shall be purchased by the Agents as principal. Such purchases
shall be made in accordance with terms agreed upon by an Agent and the Company
(which terms shall be agreed upon orally, with written confirmation prepared by
such Agent and mailed to the Company). An Agent's commitment to purchase Notes
as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each such purchase of
Notes by an Agent shall be made by such Agent with the intention of reselling
them as soon as practicable, in the sole judgment of such Agent. Each purchase
of Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. An Agent may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as principal and may
allow any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers. At the time of each purchase of
Notes by an Agent as principal, such Agent shall specify the requirements for
the stand-off agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof, respectively.
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through an Agent, as agent,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, such Agent will
8
<PAGE>
forthwith suspend solicitation of purchases from the Company until such time as
the Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and such Agent, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto.
(c) Administrative Procedures. The aggregate principal amount, purchase
-------------------------
price, interest rate or formula, maturity date and other terms of the Notes (as
applicable) specified in Exhibit A hereto shall be agreed upon by the Company
and the Agents and set forth in a pricing supplement to the Prospectus to be
prepared in connection with each sale of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 or any larger amount that is an integral multiple of
$1,000. Administrative procedures with respect to the sale of Notes shall be
agreed upon from time to time by the Agents, the Company and the Trustee (the
"Procedures"). The Agents and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
(d) Delivery of Closing Documents. The documents required to be delivered
-----------------------------
by Section 5 hereof shall be delivered at the offices of Brown & Wood, 10900
Wilshire Boulevard, Los Angeles, California 90024 on the date hereof, or at such
other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
------------------------
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose, 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 Notes
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 of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
----------------------------------
advance notice of its intention to file or prepare any additional registration
statement with
9
<PAGE>
respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for a change in the interest
rates, maturity or price of Notes), whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with
copies of any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be, and will not file any such amendment or
supplement or other documents in a form to which the Agents or counsel for the
Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
-------------------------------------------------------
will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agent may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
----------------------------------
respect to any Notes to be sold through or to an Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by such Agent and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
-------------------------------------------
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes the Agents may then
own as principal, and the Company will promptly amend the Registration Statement
and the Prospectus, whether by filing documents pursuant to the 1934 Act, the
1933 Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with such
requirements and the Company shall furnish to the Agents as many copies of the
Registration Statement and the Prospectus, as each may then be amended or
supplemented, as the Agents shall reasonably require.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
------------------------------------------------------
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be
10
<PAGE>
released to the general public interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed in
writing, and shall prior to the delivery of the Prospectus to any purchaser of
the Notes purchasing after the date on which such financial information is
released to the general public, by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
-----------------------------------------------------
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall, prior to the delivery of the Prospectus
to any purchaser of the Notes purchasing after the date on which such financial
information is released to the general public, cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company 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 under the 1933 Act) covering each twelve month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule 158)
of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
11
<PAGE>
(j) 1934 Act Filings. The Company, during the period when the Prospectus
----------------
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and to the
extent such documents are incorporated by reference in the Prospectus, when read
together with the other information in or incorporated by reference into the
Prospectus, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(k) Stand-Off Agreement. If specified by an Agent in connection with a
-------------------
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, directly or
indirectly, offer or sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Notes that are to be sold pursuant to
such agreement and commercial paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be required
---------------------------------
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agent pursuant to a request from
the Company and (ii) no Agent shall then hold any Notes purchased as principal
pursuant hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or an Agent shall subsequently purchase
Notes from the Company as principal.
(m) Use of Proceeds. The Company will use the net proceeds received by it
---------------
from the sale from time to time of Notes in the manner specified in the
Prospectus under "Use of Proceeds."
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of one or more Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as an agent of the Company, and the
obligations of any purchasers of the Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
--------------
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Latham & Watkins,
--------------------------
special counsel to the Company, to the effect that:
12
<PAGE>
(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 corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus.
(iii) 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 corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; all of the issued and
outstanding shares of capital stock of such subsidiary have been duly
and validly authorized and issued, and are fully paid and non-
assessable, and, to the best of such counsel's knowledge and
information are owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution
and delivery thereof by the Trustee) is a legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
(vi) The Notes are in due and proper form and have been duly
authorized by the Company and, when authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will have been duly
executed and delivered by, and will constitute valid and binding
obligations of, the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights of creditors or by general
equity principles and certain additional customary exceptions, and
each holder of Notes will be entitled to the benefits of the
Indenture.
(vii) The Notes and the Indenture conform in all material
respects to the respective descriptions thereof contained in the
Prospectus.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Registration Statement has been declared effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, 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.
13
<PAGE>
(x) The Registration Statement at the time it became effective
and at the Representation 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 (xiv) below, the Form T-1 or the
financial statements, schedules and other financial and statistical
data 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.
(xi) 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.
(xii) The issue and the sale of the Securities and the
compliance by the Company with the provisions of this Agreement and
the Indenture, and the consummation of the transactions therein
contemplated, 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); nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or, 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(a)(1), and no opinion under state securities laws
(including real estate syndication laws) or any antifraud laws.
(xiii) No approval, authorization, 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 sale of Notes hereunder, except
such as may have been obtained or rendered, as the case may be, or as
may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act or state securities laws.
(xiv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the financial
statements and other financial and statistical data and related
schedules included or incorporated by reference therein, as to which
no opinion need be rendered) at the time it was filed with the
Commission, appeared on its face to comply as to form in all material
respects with the 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.
14
<PAGE>
(xv) The statements set forth in the Prospectus Supplement under
the caption "Federal Income Tax Consequences", insofar as such
statements constitute matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, are accurate in all
material respects.
(xvi) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Latham & Watkins shall also deliver to the Agents a favorable opinion to
the effect that the Company has been organized in conformity with the
requirements for qualification as a real estate investment trust 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, in
form and substance satisfactory to counsel for the Agents and subject to
customary assumptions, limitations and exceptions acceptable to counsel for the
Agents.
(2) Opinion of Company Counsel. The opinion of Edward J. Henning,
--------------------------
General Counsel of the Company, 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 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 the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
15
<PAGE>
(iv) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be described or
referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto and the descriptions
thereof or references thereto are correct.
(3) Opinion of Counsel to the Agents. The opinion of Brown & Wood
--------------------------------
llp, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i) and (iv) to (x), inclusive,
above.
(4) In giving their opinions required by subsection (a)(1) and (a)(3)
of this Section, Latham & Watkins and Brown & Wood llp shall each
additionally state that nothing has come to their attention that would lead
them to believe that the Registration Statement, at the time it became
effective or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at the
time such amendment became effective or at the time of the most recent such
filing, as the case may be, or at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or supplemented
at the date hereof, or (if such opinion is being delivered in connection
with the purchase of Notes by an Agent as principal pursuant to Section
7(c) hereof) at the date of any agreement by such Agent to purchase Notes
as principal and at the Settlement Date with respect thereto, as the case
may be, contained or contains 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. In giving their opinions, Latham & Watkins, Edward
J. Henning 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, (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 and (C)
as to matters involving the laws of the State of Maryland, upon the opinion
of Ballard Spahr Andrews & Ingersoll, in form and substance satisfactory to
counsel for the Agents.
(b) Officer's Certificate. At the date hereof, the Agents shall have
---------------------
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any agreement by an Agent to purchase Notes as principal, there has
not been any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
16
<PAGE>
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
--------------
letter from Arthur Andersen & Co., dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and its subsidiaries examined by
them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim
financial statements of the Company and its indicated subsidiaries, a
reading of the minute books of the Company and such subsidiaries since
the end of the most recent fiscal year with respect to which an audit
report has been issued, inquiries of and discussions with certain
officials of the Company and such subsidiaries responsible for
financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus and the latest
available interim unaudited financial statements of the Company and
its subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that: (A) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not fairly presented
in conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet
of the Company and its
17
<PAGE>
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet to a specified date not more than five days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or net income of the Company and its subsidiaries, except in each such
case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date,
---------------
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of an
Agent, any applicable agreement by such Agent to purchase Notes as principal)
may be terminated by the applicable Agent or Agents by notice to the Company at
any time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery in Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
18
<PAGE>
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
-------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes (whether to such Agent as principal or
through such Agent as agent), and each delivery of Notes to such Agent (whether
to such Agent as principal or through such Agent as agent), shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser or
its agent, or to such Agent, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the establishment of or
a change in the interest rates, maturity or price of the Notes or similar
changes, and, unless the Agents shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities other
than the Notes under the Registration Statement, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
by an Agent as principal) the Company sells Notes to an Agent as principal or
(iv) if the Company issues and sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished to
the Agents forthwith a certificate dated the date of filing with the Commission
of such supplement or document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form satisfactory to the Agents to
the effect that the statements contained in the certificate referred to in
Section 5(b) hereof which were last furnished to the Agents are true and correct
at the time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
19
<PAGE>
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the establishment of or
a change in the interest rates, maturity or price of the Notes or similar
changes or solely for the inclusion of additional financial information, and,
unless the Agents shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities other than the
Notes under the Registration Statement or any Quarterly Report on Form 10-Q,
unless the Agents shall otherwise specify), (iii) (if required in connection
with the purchase of Notes by an Agent as principal) the Company sells Notes to
an Agent as principal or (iv) if the Company issues and sells Notes in a form
not previously certified to the Agents by the Company, the Company shall furnish
or cause to be furnished forthwith to the Agents and to counsel to the Agents
the written opinions of Latham & Watkins, counsel for the Company, and Edward J.
Henning, General Counsel of the Company, or other counsel satisfactory to the
Agents dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form and substance satisfactory to the Agents, of the
same tenor as the opinions referred to in Sections 5(a)(1) and 5(a)(2) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information, or (ii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to an Agent
as principal, the Company shall cause Arthur Andersen & Co. (or other
independent accountants of the Company satisfactory to the Agents) forthwith to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document filed with the Commission, or the date of such sale, as
the case may be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement or
-------- -------
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Arthur Andersen & Co. (or such other
acceptable independent accountants) may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement unless
any other information
20
<PAGE>
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Agent), as incurred,
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto), or made in reliance upon the Trustee's Statement of Eligibility under
the 1939 Act filed as an exhibit to the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to 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
21
<PAGE>
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Agents expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give prompt notice to each
-------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless the indemnified
parties although applicable in accordance with its terms, the Company and the
applicable Agent(s) shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the applicable Agent(s), as incurred, in
such proportions that the applicable Agent(s) is responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by the applicable Agent(s) to the date of such liability
bears to the total sales price from the sale of Notes sold to or through the
applicable Agent(s) to the date of such liability, and the Company is
responsible for the balance; provided, however, that no person guilty of
-------- -------
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Agent, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
22
<PAGE>
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and counsel, of
the Trustee and its counsel, and of any Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents incurred
in connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto (including all
documents incorporated by reference therein), and the delivery by the Agents of
the Prospectus and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) Any advertising and other out-of-pocket expenses of the Agents incurred
with the approval of the Company;
(k) The cost of providing any CUSIP or other identification numbers for the
Notes; and
(l) The fees and expenses of any Depositary (as defined in the Indenture)
and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or
23
<PAGE>
any controlling person of any Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes and the
termination of this Agreement.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any agreement
-----------------------------
hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or an Agent, as to
itself, upon the giving of ten days' written notice of such termination to the
other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
applicable Agent(s) may terminate any agreement hereunder by such Agent(s) to
purchase Notes as principal, immediately upon notice to the Company, at any time
prior to the Settlement Date relating thereto (i) if there has been, since the
date of such agreement or since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent(s), impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium shall
have been declared by either Federal, California or New York authorities, or
(iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of any applicable
principal purchase shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Company, or (v) if there shall have come to such Agent(s) attention any facts
that would cause such Agent(s) to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at the time of such delivery, not misleading.
(c) General. In the event of any such termination, neither party will have
-------
any liability to the other party hereto, except that (i) the Agents shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the
24
<PAGE>
covenant set forth in Section 4(h) hereof, the provisions of Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Attention: Kenneth B. Roath,
President and Chief Executive Officer
Fax: (310) 473-1990
With a copy to:
Pamela B. Kelly, Esq.
Latham & Watkins
633 West Fifth Street
Los Angeles, California 90071
Fax: (213) 891-8763
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
[Other Agents Addresses]
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
25
<PAGE>
SECTION 14. Governing Law; Forum.
--------------------
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of California
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
26
<PAGE>
If the foregoing is in accordance with the Agents understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By:_________________________________
Title:
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:___________________________________
Title:
27
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents and
the Company in connection with each sale of Notes:
Principal Amount: $_______
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Denominations:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c)of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
1
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate percentage set forth
below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ------------------
<S> <C>
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to 30 years 0.750%
</TABLE>
1
<PAGE>
EXHIBIT 1.2
$.
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
. . due . ., .
PURCHASE AGREEMENT
------------------
. ., 199.
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with each of . (".") and . (collectively, the
"Underwriters", which term shall also include any Underwriter substituted as
hereinafter provided in Section 10), for whom . is acting as representative (in
such capacity, . 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 $. aggregate principal amount of the Company's . . due . .,
. (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 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-.) 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 (the "Common
Stock") 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
<PAGE>
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," and the Original Registration
Statement and any Rule 462(b) Registration Statement are herein referred to
collectively 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(j) hereof) relating to the
Securities and the prospectus dated ., 199. (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
2
<PAGE>
Underwriters deem advisable after this Agreement has been executed and
delivered.
Section 1. Representations and Warranties. The Company represents and
------------------------------
warrants to each Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") as follows:
(i) 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), 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. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, in which case at the time it is first provided to the
Underwriters for such use) and at the Closing Time referred to in Section 2
hereof, does not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
-------- -------
warranties in this subsection (i) shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any Underwriter through . expressly for use in the Registration
Statement or the Prospectus or the information contained in any Statement
of Eligibility and Qualification of a trustee under the 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").
3
<PAGE>
(ii) 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.
(iii) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the 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, 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; 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) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (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)
4
<PAGE>
except for regular quarterly dividends on the Common Stock, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) 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) 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
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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) The Company has at all times operated in such manner as to
qualify as a "real estate investment trust" under the Internal Revenue Code
of 1986, as amended (the "Code"), and intends to continue to operate in
such manner.
(ix) 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.
(x) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in 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
performance of the Indenture and the consummation of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder 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 by-laws of the Company or any applicable
law, administrative regulation or administrative or court decree.
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(xi) 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 the Indenture or any transaction contemplated hereby or
thereby; 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.
(xii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act, the 1933 Act Regulations, the 1939 Act and
state securities laws.
(xiii) 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) 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 or the Indenture, the issuance and sale of the
Securities or the consummation of the transactions contemplated hereby or
thereby.
(xv) The Securities have been duly and validly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued, authenticated
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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 against the Company 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 against the
Company 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.
(xvi) The Company and its subsidiaries have good title to all real
property or interests in real property owned by it or any of them, in each
case free and clear of all liens, encumbrances and defects except such as
are 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 all leases to which the
Company is a lessee relating to real property are
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valid and binding and no default exists or is continuing thereunder, and
the Company enjoys peaceful and undisturbed possession under all such
leases to which it is a party as lessee subject only to exceptions which
would have no material adverse effect on the value of the leasehold.
(xvii) The Company is not required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xviii) The Securities are currently rated "." by Moody's Investor's
Service, Inc. and "." by Standard & Poor's Ratings Service.
(b) Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at .% 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.
(b) Payment of the purchase price for, and delivery of certificates for,
the Securities shall be made at the office of ., or at such other place as shall
be agreed upon by the Under writers and the Company, at . A.M., Los Angeles
time, on . (unless postponed in accordance with the provisions of Section 10
hereof), or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called "Closing Time"). 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.
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Section 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) The Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of the Prospectus or any amendment to
the Registration Statement or amendment or supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act during any period when
the Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or the
exemption from qualification of the Securities under state securities or
Blue Sky laws or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance by the
Commission of any stop order and, if any such stop order is issued, to
obtain the lifting thereof at the earliest possible moment. The Company
will provide the Underwriters with copies of the form of Prospectus, in
such number as the Underwriters may reasonably request, and file or
transmit for filing with the Commission such Prospectus in accordance with
Rule 424(b) of the 1933 Act Regulations by the close of business in New
York on the second business day immediately succeeding the date hereof.
(b) 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
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prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(c) 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 Registra tion Statement as
originally filed and of each amendment thereto (including documents
incorporated or deemed to be incorporated by reference therein but without
exhibits filed therewith) as the Underwriters may reasonably request.
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) 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) 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.
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(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering the twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(h) 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) 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.
(j) 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 distri bution 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).
Section 4. Payment of Expenses. The Company will pay all expenses incident
-------------------
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iii) the fees and 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
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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.
Section 5. 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:
(a) 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(j)
hereof) shall have been filed or transmitted for filing with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period, and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) At Closing Time the Underwriters shall have received:
(1) 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:
(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 corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, and the Securities have been duly
authorized for execution and delivery by the Company.
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(iv) 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.
(v) The Indenture is the legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
(vi) The Securities and the Indenture conform in all
material respects to the respective descriptions thereof
contained in the Prospectus.
(vii) Texas HCP, Inc. has been duly incor porated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, and has 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, to the best of such counsel's knowledge,
are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Registration Statement (including any Rule 462(b)
Registration Statement) is 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 or proceedings therefor initiated or threatened by
the Commission.
(x) The Registration Statement (including any Rule 462(b)
Registration Statement) at the time it became effective and at the
Representation 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
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understood that such counsel need express no opinion with respect
to documents incorporated by reference therein except as set forth
in paragraph (xi) below, the Form T-1 or the financial statements,
schedules and other financial and statistical data 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.
(xi) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules and other financial and
statistical data 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.
(xii) The Indenture has been duly qualified under the 1939
Act.
(xiii) 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.
(xiv) No authorization, approval, consent, decree or order
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 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, the
1933 Act Regulations, the 1939 Act or state securities laws
(including real estate syndication laws).
(xv) The issue and the sale of the Securities and the
compliance by the Company with the provisions of this Agreement
and the Indenture, and the consummation of the transactions
therein contemplated, will not result in a breach or violation of
any material term or provision of, or constitute a default under
the Material Agreements
15
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(as defined in such opinion); nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or, 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.
(xvi) The Company is not required to be registered under the
1940 Act.
(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
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 caption
"Certain Federal Income Tax Considerations to the Company", to
the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects.
(3) 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 leasing of its properties
or the conduct of its business requires such qualification,
except where the failure to so
16
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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 subsidiary of the Company is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires
such qualification, except where the failure to so qualify and be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of such counsel's knowledge and
information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein which would have a material adverse effect on
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto and the descriptions thereof or
references thereto are correct.
(4) 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), (iii) to (vi), (viii) to (x), and (xii), inclusive,
of subsection (b)(1) of this Section.
17
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(5) In giving their opinions required by subsections (b)(1) and
(b)(4), respectively, of this Section, Latham & Watkins and Brown &
Wood LLP shall each additionally state that nothing has come to their
attention that would lead 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 an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. 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, (B) as to the qualification and good standing
of the Company to do business in any state or jurisdiction, upon
certificates of appropriate government officials and (C) as to matters
involving the laws of the State of Maryland, upon the opinion of
Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to
counsel for the Underwriters.
(c) 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
18
<PAGE>
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) 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.
(e) 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.
(f) 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 4, 6, 7 and 8 shall remain in effect.
Section 6. Indemnification. 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, as follows:
19
<PAGE>
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or any omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by .), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through . expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus, preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto), and (B) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus or preliminary prospectus supplement, this indemnity
agreement shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter within the meaning of
Section 15 of the 1933 Act) to the extent
20
<PAGE>
that any such loss, liability, claim, damage or expense of such Underwriter
or any person controlling such Underwriter results from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given
by such Underwriter or on such Underwriter's behalf at or prior to the
written confirmation of the sale of such Securities to such person, a copy
of the Prospectus (as then amended or supplemented), if required by law to
have been so delivered, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss,
liability, claim, damage or expense.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such Underwriter through . expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) 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 which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) 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.
(d) 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. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity
21
<PAGE>
agreement provided for in Section 6 hereof is for any reason held to be
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus Supplement bears to the
initial public offering price appearing thereon and the Company is responsible
for the balance; provided, however, that no person guilty of fraudulent
-------- -------
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For the purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 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 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 the Underwriters or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
Section 9. Termination of Agreement. 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
the effect of which on the financial markets of the United States is such as to
make it, in the judgement of the Underwriters, impracticable to market the
Securities or enforce contracts for the sale of the Securities, (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 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 or any other governmental
authority, or
22
<PAGE>
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 the Securities on what is commonly termed a
"watch list" for possible downgrading or (B) downgraded the Securities. 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 any Underwriter
------------------------------------------
shall fail at Closing Time to purchase the Securities which it is obligated to
purchase hereunder (the "Defaulted Securities"), the Representative shall have
the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall have not completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
each of the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, 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.
23
<PAGE>
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 Representative ., Attention: . and notices
to the Company shall be directed to it at 10990 Wilshire Boulevard, Suite 1200,
Los Angeles, California 90024, Attention: Kenneth B. Roath, President and Chief
Executive Officer, with a copy to Pamela B. Kelly, Esq. at Latham & Watkins, 633
West Fifth Street, Los Angeles, California 90071.
Section 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation other than the Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof and their
heirs and legal representatives any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by and
----------------------
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed in such State. Unless stated otherwise, all
specified times of day refer to New York City time.
24
<PAGE>
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:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
- -----------------------------------
- -----------------------------------
By:
-------------------------------------
By:
-------------------------------------
Authorized Signatory
25
<PAGE>
SCHEDULE A
Principal
Amount of
Underwriters Securities
- ----------------------------------- ----------
---------
Total. . . . . . . . . . . . . . . . . $
=========
<PAGE>
EXHIBIT 1.3
. Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
------------------
., 199.
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with each of . (".") and . (collectively, the
"Underwriters"), which term shall also include any Underwriter substituted as
hereinafter provided in Section 10), for whom . is acting as a representative
(in such capacity, . shall hereinafter be referred to as the "Representative"),
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of shares of Common
Stock, par value $1.00 per share, of the Company ("Common Stock") set forth in
Schedule A hereto, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of . additional shares of Common
Stock to cover over-allotments. The aforesaid . shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the shares of Common Stock subject to the option described in Section 2(b)
hereof (the "Option Securities") are collectively hereinafter called the
"Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form
1
<PAGE>
S-3 (No. 333-.) and a related preliminary prospectus for the registration under
the Securities Act of 1933, as amended (the "1933 Act") of Common Stock,
including the Securities, preferred stock, par value $1.00 per share, and debt
securities (collectively, the "Registered Securities"), which registration
statement has been declared effective by the Commission and copies of which have
heretofore been delivered to you. Such Registration Statement, in the form in
which it was declared effective, as amended through the date hereof, including
all documents incorporated or deemed to be incorporated by reference therein
through the date hereof, is hereinafter referred to as the "Original
Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") is herein referred to as the "Rule 462(b) "Registration
Statement". The Company proposes to file with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations the Prospectus Supplement (as defined in
Section 3(i) hereof) relating to the Securities and the prospectus dated ., 199.
(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.
2
<PAGE>
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company represents and
------------------------------
warrants to each Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and the 1933 Act Regulations. Each of the Original
Registration Statement and any Rule 462(b) Registration Statement and the
Base Prospectus, at the respective times the Original Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and as of the Representation Date,
complied and comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933
Act Regulations), and did not and as of the Representation Date do not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the
time it is first provided to the Underwriters for such use) and at the
Closing Time referred to in Section 2 hereof, does not and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the representations and warranties in this subsection (i)
-------
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
. expressly for use in the Registration Statement or the Prospectus or the
information contained in any Statement of Eligibility and Qualification of
a trustee under the Trust Indenture Act of 1939, as amended (the "1939
Act") filed as an exhibit to the Registration Statement (a "Form T-1").
For purposes of this Section 1(a), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectus shall
be deemed to include, without limitation, any electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("EDGAR").
3
<PAGE>
(ii) 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.
(iii) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the 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, 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; 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) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (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
4
<PAGE>
for regular quarterly dividends on the Common Stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(vi) 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) 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
5
<PAGE>
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) The Company has at all times operated in such manner as to
qualify as a "real estate investment trust" under the Internal Revenue Code
of 1986, as amended (the "Code"), and intends to continue to operate in
such manner.
(ix) The authorized capital stock of the Company is as set forth in
the Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus); the shares of issued Common Stock have been
duly authorized and validly issued and are fully paid and non-assessable;
the Company has the requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and the
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms to all statements relating thereto contained in
the Prospectus; the issuance of the Securities is not subject to preemptive
rights; and, after giving effect to the sale of the Securities and the sale
of any other of the Registered Securities to be issued prior to the
delivery of the Securities, the aggregate amount of Securities which have
been issued and sold by the Company will not exceed the aggregate amount of
theretofore unsold Registered Securities.
(x) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in 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
6
<PAGE>
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 by-laws of the Company or any applicable
law, administrative regulation or administrative or court decree.
(xi) 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.
(xii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) 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) 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,
7
<PAGE>
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 all leases to which the
Company is a lessee relating to real property are valid and binding and no
default exists or is continuing thereunder, and the Company enjoys peaceful
and undisturbed possession under all such leases to which it is a party as
lessee, subject only to exceptions which would have no material adverse
effect on the value of the leasehold.
(xv) The Company is not required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(b) Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at $_____ per share, the
number of Initial Securities set forth in Schedule A hereto opposite the name of
such Underwriter, plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional __________ shares of Common Stock at the price per
8
<PAGE>
share set forth in paragraph (a) above. The option hereby granted will expire 30
days after the Representation Date, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Securities
upon notice by the Underwriters to the Company setting forth the number of
Option Securities as to which the Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
the Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Underwriters and the Company. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the Underwriters in their discretion shall make
to eliminate any sales or purchases of fractional Securities.
(c) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the office of ____________________,
______________________________, or at such other place as shall be agreed upon
by the Underwriters and the Company, at . A.M., Los Angeles time, on . (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriters and the Company (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that any or all
of the Option Securities are purchased by the Underwriters, payment of the
purchase price for and delivery of certificates for such Option Securities shall
be made at the above-mentioned office of _______________, or at such other place
as shall be mutually agreed upon by the Underwriters and the Company, on each
Date of Delivery as specified in the notice from the Underwriters to the
Company. Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the Underwriters of certificates for the Securities to be purchased by the
Underwriters. Certificates for the Initial Securities and the Option Securities
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least one business day before Closing Time or the
relevant Date of Delivery, as the case may be. It is understood that each
Underwriter other than _______________ has authorized __________ __________, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ___________,
9
<PAGE>
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment to the Company on behalf of any Underwriter or
Underwriters for the Securities to be purchased by such Underwriter or
Underwriters, but such payment shall not relieve such Underwriter or
Underwriters from its obligations hereunder. The certificates for the Initial
Securities and the Option Securities, if any, will be made available for
examination and packaging by the Underwriters not later than 10:00 A.M. on the
last business day prior to Closing Time or the relevant Date of Delivery, as the
case may be in New York, New York.
Section 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) The Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of the Prospectus or any amendment to
the Registration Statement or amendment or supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act during any period when
the Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or the
exemption from qualification of the Securities under state securities or
Blue Sky laws or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance by the
Commission of any stop order and, if any such stop order is issued, to
obtain the lifting thereof at the earliest possible moment. The Company
will provide the Underwriters with copies of the form of Prospectus, in
such number as the Underwriters may reasonably request, and file or
transmit for filing with the Commission such Prospectus in accordance with
Rule 424(b) of the 1933 Act Regulations by the close of business in New
York on the second business day immediately succeeding the date hereof.
(b) 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
10
<PAGE>
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.
(c) The Company will deliver to the Underwriters as many signed copies
of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith and documents incorporated or
deemed to be incorporated by reference therein) as the Underwriters may
reasonably request and will also deliver to the Underwriters as many
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including documents incorporated or deemed to be
incorporated by reference therein but without exhibits filed therewith) as
the Underwriters may reasonably request.
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) 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.
11
<PAGE>
(f) 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.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering the twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(h) 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) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the terms of the Securities, the plan
of distribution thereof and such other information as may be required by
the 1933 Act or the 1933 Act Regulations or as the Underwriters and the
Company deem appropriate, and will file or transmit for filing with the
Commission in accordance with Rule 424(b) of the 1933 Act Regulations
copies of the Prospectus (including such Prospectus Supplement).
(j) 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.
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, (iii) the
12
<PAGE>
fees and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Supplemental Blue Sky Survey, (v) the
printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus and preliminary prospectus supplement
and of the Prospectus and Prospectus Supplement and any amendments or
supplements thereto, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vi) the printing and
delivery to the Underwriters of copies of the Supplemental Blue Sky Survey and
(vii) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
If this Agreement is cancelled or terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fee and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus (including the Prospectus Supplement referred to in Section 3(i)
hereof) shall have been filed or transmitted for filing with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period, and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) At Closing Time the Underwriters shall have received:
(1) 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:
13
<PAGE>
(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 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 Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; and the
issuance of such Securities is not subject to preemptive rights
under the Charter or Bylaws of the Company or the Maryland
General Corporation Law or, to the best of such counsel's
knowledge, similar rights.
(v) Texas HCP, Inc. has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, and has 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, to the best of such counsel's knowledge,
are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Registration Statement (including any Rule 462(b)
Registration Statement) is 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 or proceedings therefor initiated or
threatened by the Commission.
14
<PAGE>
(viii) The Registration Statement (including any Rule 462(b)
Registration Statement) at the time it became effective and at
the Representation 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 (ix) below,
any Form T-1 or the financial statements, schedules and other
financial and statistical data 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.
(ix) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules and other financial and
statistical data 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.
(x) The Common Stock conforms to the description thereof
contained in the Prospectus and the form of certificate used to
evidence the Securities is in due and proper form.
(xi) 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.
(xii) No authorization, approval, consent, decree or order 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 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
15
<PAGE>
securities laws (including real estate syndication laws).
(xiii) The issue and sale of the Securities and the
compliance by the Company with the provisions of this Agreement
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); nor will such action
result in any violation of the provisions of the charter or by-
laws of the Company or, 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.
(xiv) The Company is not required to be registered under the
1940 Act.
(2) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, special counsel for the Company, in form and scope
satisfactory to special 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
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 caption
"Certain Federal Income Tax Considerations to the Company", to
the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects.
(3) 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:
16
<PAGE>
(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 leasing of its 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 subsidiary of the Company is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires
such qualification, except where the failure to so qualify and be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of such counsel's knowledge and
information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein which would have a material adverse effect on
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto and the descriptions thereof or
references thereto are correct.
17
<PAGE>
(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 have been duly authorized and validly issued and are fully
paid and non-assessable.
(4) 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), (iv), (vi), (vii), (viii) and (x) of subsection
(b)(1) of this Section.
(5) In giving their opinions required by subsections (b)(1) and
(b)(4), 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 an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. 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, (B) as to the qualification and good standing
of the Company to do business in any state or jurisdiction, upon
certificates of appropriate government officials and (C) as to matters
involving the laws of the State of Maryland, upon the opinion of
Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to
counsel for the Underwriters.
(c) 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
18
<PAGE>
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.
(d) 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.
(e) 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.
(f) At Closing Time the Securities shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange.
(g) At Closing Time and each Date of Delivery, if any, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated and
19
<PAGE>
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.
(h) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriters shall
have received:
(1) The favorable opinion of Latham & Watkins, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(1) and 5(b)(5) hereof.
(2) The favorable opinion of Latham & Watkins, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming their opinion
delivered at Closing Time pursuant to Section 5(b)(2) hereof.
(3) The favorable opinion of Edward J. Henning, General Counsel
of the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming his opinion
delivered at Closing Time pursuant to Section 5(b)(3) hereof.
(4) The favorable opinion of Brown & Wood llp, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(4) and 5(b)(5) hereof.
(5) A certificate of the President or a Vice President of the
Company and the chief financial or chief accounting officer of the
Company, dated such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
20
<PAGE>
(6) A letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(e) hereof except that the
"specified date" in the letter furnished pursuant to this subsection
shall be a date not more than three business days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notifying the Company at any time at or prior to Closing Time,
and such termination shall be without 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 6. Indemnification. (a) 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, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by .), reasonably
21
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incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
- -------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through . expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus, preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto), and (B) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus or preliminary
prospectus supplement, this indemnity agreement shall not inure to the benefit
of any Underwriter (or to the benefit of any person controlling such Underwriter
within the meaning of Section 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.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such Underwriter through . expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of
22
<PAGE>
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) 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.
(d) 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. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus Supplement bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
- -------- -------
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
the purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 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 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 the Underwriters or
23
<PAGE>
any controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
Section 9. Termination of Agreement. (a) The Underwriters may terminate
------------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, 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 the effect of which on the financial
markets of the United States is such as to make it, in the judgement of the
Underwriters, impracticable to market the Securities or enforce contracts for
the sale of the Securities, or (iii) if trading in the securities of the Company
has been suspended by the Commission, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange 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 or any other governmental authority, or if a banking
moratorium has been declared by either federal, New York or California
authorities. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If any Underwriter
------------------------------------------
shall fail at Closing Time to purchase the Securities which it is obligated to
purchase hereunder (the "Defaulted Securities"), the Representative shall have
the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall have not completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
24
<PAGE>
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery, shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriters or the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to them at ., Attention: ., and notices to the
Company shall be directed to it at 10990 Wilshire Boulevard, Suite 1200, Los
Angeles, California 90024, Attention: Kenneth B. Roath, President and Chief
Executive Officer, with a copy to Pamela B. Kelly, Esq. at Latham & Watkins, 633
West Fifth Street, Los Angeles, California 90071.
Section 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation other than the Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof and their
heirs and legal representatives any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of California applicable
to agreements made and to be
25
<PAGE>
performed in such State. Unless stated otherwise, all specified times of day
refer to New York City time.
26
<PAGE>
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:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
__________________________________
__________________________________
__________________________________
__________________________________
By:
By:
-----------------------------------
Authorized Signatory
27
<PAGE>
SCHEDULE A
Number of
Underwriters Securities
- ------------------------------------------- ----------
----------
Total. .................................... ==========
28
<PAGE>
EXHIBIT 1.4
. Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Preferred Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
------------------
., 199.
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with each of . (".") and . (collectively, the
"Underwriters"), which term shall also include any Underwriter substituted as
hereinafter provided in Section 10), for whom . is acting as a representative
(in such capacity, . shall hereinafter be referred to as the "Representative"),
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of shares of
Preferred Stock of the Company ("Preferred Stock") set forth in Schedule A
hereto, and with respect to the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of . additional shares of Preferred Stock to cover
over-allotments. The aforesaid . shares of Preferred Stock (the "Initial
Securities") to be purchased by the Underwriters and all or any part of the
shares of Preferred Stock subject to the option described in Section 2(b) hereof
(the "Option Securities") are collectively hereinafter called the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form
<PAGE>
S-3 (No. 333-.) and a related preliminary prospectus for the registration under
the Securities Act of 1933, as amended (the "1933 Act") of Common Stock,
preferred stock, par value $1.00 per share, including the Securities, and debt
securities (collectively, the "Registered Securities"), which registration
statement has been declared effective by the Commission and copies of which have
heretofore been delivered to you. Such Registration Statement, in the form in
which it was declared effective, as amended through the date hereof, including
all documents incorporated or deemed to be incorporated by reference therein
through the date hereof, is hereinafter referred to as the "Original
Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") is herein referred to as the "Rule 462(b) "Registration
Statement". The Company proposes to file with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations the Prospectus Supplement (as defined in
Section 3(i) hereof) relating to the Securities and the prospectus dated ., 199.
(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.
2
<PAGE>
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company represents and
------------------------------
warrants to each Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and the 1933 Act Regulations. Each of the Original
Registration Statement and any Rule 462(b) Registration Statement and the
Base Prospectus, at the respective times the Original Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and as of the Representation Date,
complied and comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933
Act Regulations), and did not and as of the Representation Date do not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the
time it is first provided to the Underwriters for such use) and at the
Closing Time referred to in Section 2 hereof, does not and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the representations and warranties in this subsection (i)
-------
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
. expressly for use in the Registration Statement or the Prospectus or the
information contained in any Statement of Eligibility and Qualification of
a trustee under the Trust Indenture Act of 1939, as amended (the "1939
Act") filed as an exhibit to the Registration Statement (a "Form T-1").
For purposes of this Section 1(a), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectus shall
be deemed to include, without limitation, any electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("EDGAR").
3
<PAGE>
(ii) 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.
(iii) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the 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, 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; 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) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (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
4
<PAGE>
for regular quarterly dividends on the Common Stock, par value $1.00 per
share, of the Company ("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.
(vi) 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) 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
5
<PAGE>
(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) The Company has at all times operated in such manner as to
qualify as a "real estate investment trust" under the Internal Revenue Code
of 1986, as amended (the "Code"), and intends to continue to operate in
such manner.
(ix) The authorized capital stock of the Company is as set forth in
the Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus); the shares of issued Common Stock have been
duly authorized and validly issued and are fully paid and non-assessable;
the Company has the requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and the
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and non-assessable;
the Common Stock conforms to all statements relating thereto contained in
the Prospectus; the issuance of the Securities is not subject to preemptive
rights; and, after giving effect to the sale of the Securities and the sale
of any other of the Registered Securities to be issued prior to the
delivery of the Securities, the aggregate amount of Securities which have
been issued and sold by the Company will not exceed the aggregate amount of
theretofore unsold Registered Securities.
(x) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in 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
6
<PAGE>
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 by-laws of the Company or any applicable law, administrative
regulation or administrative or court decree.
(xi) 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.
(xii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Securities hereunder, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) 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) The Company and its subsidiaries have good title to all real
property or interests in real property owned by
7
<PAGE>
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 all leases to which the Company is a lessee relating to
real property are valid and binding and no default exists or is continuing
thereunder, and the Company enjoys peaceful and undisturbed possession
under all such leases to which it is a party as lessee, subject only to
exceptions which would have no material adverse effect on the value of the
leasehold.
(xv) The Company is not required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(b) Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at $_____ per share, the
number of Initial Securities set forth in Schedule A hereto opposite the name of
such Underwriter, plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to
8
<PAGE>
an additional __________ shares of Preferred Stock at the price per share set
forth in paragraph (a) above. The option hereby granted will expire 30 days
after the Representation Date, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Securities upon
notice by the Underwriters to the Company setting forth the number of Option
Securities as to which the Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Underwriters and the Company. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the Underwriters in their discretion shall make
to eliminate any sales or purchases of fractional Securities.
(c) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the office of ____________________,
______________________________, or at such other place as shall be agreed upon
by the Underwriters and the Company, at . A.M., Los Angeles time, on . (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriters and the Company (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that any or all
of the Option Securities are purchased by the Underwriters, payment of the
purchase price for and delivery of certificates for such Option Securities shall
be made at the above-mentioned office of _______________, or at such other place
as shall be mutually agreed upon by the Underwriters and the Company, on each
Date of Delivery as specified in the notice from the Underwriters to the
Company. Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the Underwriters of certificates for the Securities to be purchased by the
Underwriters. Certificates for the Initial Securities and the Option Securities
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least one business day before Closing Time or the
relevant Date of Delivery, as the case may be. It is understood that each
Underwriter other than _______________ has authorized __________ __________, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the
9
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Securities which it has agreed to purchase. _______________, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters for the
Securities to be purchased by such Underwriter or Underwriters, but such payment
shall not relieve such Underwriter or Underwriters from its obligations
hereunder. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriters not later than 10:00 A.M. on the last business day prior to Closing
Time or the relevant Date of Delivery, as the case may be in New York, New York.
Section 3.Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) The Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of the Prospectus or any amendment to
the Registration Statement or amendment or supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act during any period when
the Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or the
exemption from qualification of the Securities under state securities or
Blue Sky laws or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance by the
Commission of any stop order and, if any such stop order is issued, to
obtain the lifting thereof at the earliest possible moment. The Company
will provide the Underwriters with copies of the form of Prospectus, in
such number as the Underwriters may reasonably request, and file or
transmit for filing with the Commission such Prospectus in accordance with
Rule 424(b) of the 1933 Act Regulations by the close of business in New
York on the second business day immediately succeeding the date hereof.
(b) 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
10
<PAGE>
(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.
(c) The Company will deliver to the Underwriters as many signed copies
of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith and documents incorporated or
deemed to be incorporated by reference therein) as the Underwriters may
reasonably request and will also deliver to the Underwriters as many
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including documents incorporated or deemed to be
incorporated by reference therein but without exhibits filed therewith) as
the Underwriters may reasonably request.
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) 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.
11
<PAGE>
(f) 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.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering the twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(h) 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) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the terms of the Securities, the plan
of distribution thereof and such other information as may be required by
the 1933 Act or the 1933 Act Regulations or as the Underwriters and the
Company deem appropriate, and will file or transmit for filing with the
Commission in accordance with Rule 424(b) of the 1933 Act Regulations
copies of the Prospectus (including such Prospectus Supplement).
(j) 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.
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, (iii) the
12
<PAGE>
fees and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fee
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Supplemental Blue Sky Survey, (v) the
printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus and preliminary prospectus supplement
and of the Prospectus and Prospectus Supplement and any amendments or
supplements thereto, including any abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vi) the printing and
delivery to the Underwriters of copies of the Supplemental Blue Sky Survey and
(vii) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
If this Agreement is cancelled or terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fee and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus (including the Prospectus Supplement referred to in Section 3(i)
hereof) shall have been filed or transmitted for filing with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period, and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) At Closing Time the Underwriters shall have received:
(1) 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:
13
<PAGE>
(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 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 Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; and the
issuance of such Securities is not subject to preemptive rights
under the Charter or Bylaws of the Company or the Maryland
General Corporation Law or, to the best of such counsel's
knowledge, similar rights.
(v) Texas HCP, Inc. has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, and has 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, to the best of such counsel's knowledge,
are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Registration Statement (including any Rule
462(b) Registration Statement) is 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 or proceedings therefor initiated
or threatened by the Commission.
14
<PAGE>
(viii) The Registration Statement (including any Rule
462(b) Registration Statement) at the time it became effective
and at the Representation 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 (ix) below,
any Form T-1 or the financial statements, schedules and other
financial and statistical data 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.
(ix) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements, schedules and other financial and
statistical data 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.
(x) The Preferred Stock conforms to the description
thereof contained in the Prospectus and the form of certificate
used to evidence the Securities is in due and proper form.
(xi) 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.
(xii) No authorization, approval, consent, decree or
order 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 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
15
<PAGE>
securities laws (including real estate syndication laws).
(xiii) The issue and sale of the Securities and the
compliance by the Company with the provisions of this Agreement
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); nor will such action
result in any violation of the provisions of the charter or by-
laws of the Company or, 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.
(xiv) The Company is not required to be registered
under the 1940 Act.
(2) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, special counsel for the Company, in form and scope
satisfactory to special 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
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 caption
"Certain Federal Income Tax Considerations to the Company", to
the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects.
(3) 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:
16
<PAGE>
(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 leasing of its 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 subsidiary of the Company is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires
such qualification, except where the failure to so qualify and be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of such counsel's knowledge and
information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein which would have a material adverse effect on
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto and the descriptions thereof or
references thereto are correct.
17
<PAGE>
(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 have been duly authorized and validly issued and are fully
paid and non-assessable.
(4) 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), (iv), (vi), (vii), (viii) and (x) of subsection
(b)(1) of this Section.
(5) In giving their opinions required by subsections (b)(1) and
(b)(4), 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 an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. 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, (B) as to the qualification and good standing
of the Company to do business in any state or jurisdiction, upon
certificates of appropriate government officials and (C) as to matters
involving the laws of the State of Maryland, upon the opinion of
Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to
counsel for the Underwriters.
(c) 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
18
<PAGE>
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.
(d) 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.
(e) 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.
(f) At Closing Time the Securities shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange.
(g) At Closing Time and each Date of Delivery, if any, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated and
19
<PAGE>
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.
(h) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriters shall
have received:
(1) The favorable opinion of Latham & Watkins, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(1) and 5(b)(5) hereof.
(2) The favorable opinion of Latham & Watkins, special counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming their opinion
delivered at Closing Time pursuant to Section 5(b)(2) hereof.
(3) The favorable opinion of Edward J. Henning, General Counsel
of the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming his opinion
delivered at Closing Time pursuant to Section 5(b)(3) hereof.
(4) The favorable opinion of Brown & Wood llp, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(4) and 5(b)(5) hereof.
(5) A certificate of the President or a Vice President of the
Company and the chief financial or chief accounting officer of the
Company, dated such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
20
<PAGE>
(6) A letter from Arthur Andersen llp, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(e) hereof except that the
"specified date" in the letter furnished pursuant to this subsection
shall be a date not more than three business days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notifying the Company at any time at or prior to Closing Time,
and such termination shall be without 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 6. Indemnification. (a) 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, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or any omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by .), reasonably
21
<PAGE>
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
- -------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through . expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus, preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto), and (B) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus or preliminary
prospectus supplement, this indemnity agreement shall not inure to the benefit
of any Underwriter (or to the benefit of any person controlling such Underwriter
within the meaning of Section 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.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such Underwriter through . expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of
22
<PAGE>
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) 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.
(d) 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. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus Supplement bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
- -------- -------
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
the purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 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 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 the Underwriters or
23
<PAGE>
any controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
Section 9. Termination of Agreement. (a) The Underwriters may terminate
------------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, 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 the effect of which on the financial
markets of the United States is such as to make it, in the judgement of the
Underwriters, impracticable to market the Securities or enforce contracts for
the sale of the Securities, or (iii) if trading in the securities of the Company
has been suspended by the Commission, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange 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 or any other governmental authority, or if a banking
moratorium has been declared by either federal, New York or California
authorities. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If any Underwriter
------------------------------------------
shall fail at Closing Time to purchase the Securities which it is obligated to
purchase hereunder (the "Defaulted Securities"), the Representative shall have
the right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall have not completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
24
<PAGE>
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery, shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriters or the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to them at ., Attention: ., and notices to the
Company shall be directed to it at 10990 Wilshire Boulevard, Suite 1200, Los
Angeles, California 90024, Attention: Kenneth B. Roath, President and Chief
Executive Officer, with a copy to Pamela B. Kelly, Esq. at Latham & Watkins, 633
West Fifth Street, Los Angeles, California 90071.
Section 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation other than the Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof and their
heirs and legal representatives any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of California applicable
to agreements made and to be
25
<PAGE>
performed in such State. Unless stated otherwise, all specified times of day
refer to New York City time.
26
<PAGE>
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: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
__________________________________
__________________________________
__________________________________
__________________________________
By:_______________________________
Authorized Signatory
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriters Securities
- ------------------------------------- -----------
<S> <C>
-----------
Total................................ ===========
</TABLE>
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF LATHAM & WATKINS]
June 18, 1997
Health Care Property Investors, Inc.
10990 Wilshire Boulevard, Suite 1200
Los Angeles, California 90024
Re: $300,000,000 Aggregate Offering Price of Securities of Health
Care Property Investors, Inc. (File No. 333-______)
Ladies and Gentlemen:
At your request, we have examined the registration statement on Form S-3
(File No. 333-________) (the "Registration Statement") being filed by you with
the Securities and Exchange Commission in connection with the registration,
under the Securities Act of 1933, as amended, of up to $300,000,000 aggregate
offering price of securities (the "Securities"), consisting of one or more
series of debt securities (the "Debt Securities"), one or more series of shares
of preferred stock, par value $1.00 per share (the "Preferred Stock"), shares of
common stock, par value $1.00 per share (the "Common Stock") and rights to
purchase common stock (the "Rights"). We also have examined the existing
indenture (the "Indenture") dated as of September 1, 1993 between Health Care
Property Investors, Inc. (the "Company"), and The Bank of New York, as Trustee,
which has been filed with the Commission and incorporated by reference to the
Registration Statement, relating to the Debt Securities.
In our capacity as your counsel in connection with such registration, we
are familiar with the proceedings taken and proposed to be taken by the Company
in connection with the authorization and issuance of the Securities and for the
purposes of this opinion, have assumed such proceedings will be timely completed
in the manner presently proposed and that the terms of each issuance will
otherwise be in compliance with law. In addition, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our
<PAGE>
Health Care Property Investors, Inc.
June 18, 1997
Page 2
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion.
We are opining herein as to the effect on the subject transaction only of
the internal laws of the State of California and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any
other jurisdiction or as to any matters of municipal law or the laws of any
other local agencies within any state. In rendering the opinions set forth in
paragraphs 1, 2 and 3 as they relate to the corporate laws of Maryland, we have
with your consent relied solely upon the opinion of Ballard Spahr Andrews &
Ingersoll, special Maryland corporate counsel for the Company, addressed to us
and dated the date hereof, and our opinion is subject to any assumptions,
exceptions, qualifications or limitations set forth in such opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
Subject to the foregoing and the other matters set forth herein, it is our
opinion that, as of the date hereof:
1. Upon: (a) establishment by the Board of Directors of the Company (the
"Board of Directors") of the terms, conditions and provisions of any Debt
Securities; (b) due authorization by the Board of Directors of such Debt
Securities for issuance at a minimum price or value of consideration to be set
by the Board of Directors; and (c) reservation and due authorization by the
Board of Directors of any shares of Preferred Stock and/or any shares of Common
Stock and related Rights issuable upon conversion of the Debt Securities in
accordance with the procedures set forth in paragraphs 2 and 3 below at a
minimum price or value of consideration to be set by the Board of Directors, the
Debt Securities will have been duly authorized by the Company, and when the Debt
Securities have been duly established by the Indenture, duly authenticated by
the Trustee and duly executed and delivered on behalf of the Company against
payment therefor in accordance with the terms and provisions of the Indenture
and as contemplated by the Registration Statement, the Debt Securities will
constitute valid, binding and enforceable obligations of the Company.
2. Upon: (a) designation by the Board of Directors of one or more series
of Preferred Stock to distinguish each such series from any other outstanding
series of Preferred Stock; (b) setting by the Board of Directors of the number
of shares of Preferred Stock to be included in such series; (c) establishment by
the Board of Directors of the
<PAGE>
Health Care Property Investors, Inc.
June 18, 1997
Page 3
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of such series of Preferred Stock; (d) filing by the Company with the
State Department of Assessments and Taxation of Maryland (the "Department") of
Articles Supplementary setting forth a description of such series of Preferred
Stock, including the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption as set by the Board of Directors and a statement that
such series of the Preferred Stock has been classified by the Board of Directors
under the authority contained in the Articles of Restatement of the Company, the
Amended and Restated Bylaws of the Company adopted on April 20, 1995 and certain
resolutions adopted and actions taken by the Board of Directors on or before the
date hereof, and the acceptance for record by the Department of such Articles
Supplementary; (e) due authorization by the Board of Directors of a designated
number of shares of such series of Preferred Stock for issuance at a minimum
price or value of consideration to be set by the Board of Directors, and (f)
reservation and due authorization by the Board of Directors of any shares of any
other series of Preferred Stock and/or any shares of Common Stock and related
Rights issuable upon conversion of such series of Preferred Stock in accordance
with the procedures set forth in this paragraph and paragraph 3 below, the
Preferred Stock will have been duly authorized by the Company, and when the
Preferred Stock has been duly established in accordance with the terms of the
Company's Articles of Restatement and applicable law, and, upon issuance,
delivery and payment therefor in the manner contemplated by the Registration
Statement, the Preferred Stock will be validly issued, fully paid and
nonassessable.
3. Upon due authorization by the Board of Directors of a designated number
of shares of Common Stock and related Rights for issuance at a minimum price or
value of consideration to be set by the Board of Directors, the Common Stock,
including any Common Stock that may be issuable pursuant to the conversion of
any Debt Securities or Preferred Stock, will have been duly authorized, and upon
issuance, delivery and payment therefor in the manner contemplated by the
Registration Statement, will be validly issued, fully paid and nonassessable.
The opinion rendered in clause 1 above is subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws or equitable
principles relating to or affecting the rights and remedies of creditors; (ii)
limitations imposed by California or federal law or equitable principles on the
availability of specific performance, injunctive relief or other equitable
remedies; (iii) we advise you that a California court may not strictly enforce
certain covenants contained in the Indenture or allow acceleration of the
maturity of the
<PAGE>
Health Care Property Investors, Inc.
June 18, 1997
Page 4
indebtedness evidenced by the Debt Securities if it concludes that such
enforcement or acceleration would be unreasonable under the then existing
circumstances; (iv) certain rights, remedies and waivers contained in the
Indenture may be limited or rendered ineffective by applicable California laws
or judicial decisions governing such provisions, but such laws or judicial
decisions do not render the Indenture invalid as a whole; (v) applicable
California laws or judicial decisions may require that a judgment for money
damages rendered in the United States be expressed in United States dollars; and
(vi) we express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the stated principal
amount thereof which might be determined to constitute unearned interest
thereon.
To the extent that the obligations of the Company under the Indenture may
be dependent upon such matters, we assume for purposes of this opinion that the
Trustee is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
legally valid, binding and enforceable obligation of the Trustee enforceable
against the Trustee in accordance with its terms; that the Trustee is in
compliance, generally with respect to acting as a trustee under the Indenture,
with all applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the Indenture.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 8.1
[Latham & Watkins Letterhead]
June 18, 1997
Health Care Property Investors, Inc.
10990 Wilshire Boulevard, Suite 1200
Los Angeles, California 90024
Re: Health Care Property Investors, Inc. (the "Company")
----------------------------------------------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") being filed by you with the Securities and Exchange
Commission on June 16, 1997 in connection with the registration of unsecured
debt securities, shares of the Company's preferred stock, par value $1.00 per
share, shares of the Company's common stock, par value $1.00 per share, and
certain rights (collectively, the "Securities") under the Securities Act of
1933, as amended, you have requested our opinion concerning certain of the
federal income tax consequences to the Company of its election to be taxed as a
real estate investment trust.
This opinion is based on various assumptions, and is conditioned upon
certain representations made by the Company as to factual matters through a
certificate of an officer of the Company (the "Officer's Certificate"). In
addition, this opinion is based upon the factual representations of the Company
concerning its business and properties as set forth in the Registration
Statement.
In our capacity as counsel to the Company, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments, as we have deemed necessary or
appropriate for purposes of this opinion.
<PAGE>
Health Care Property Investors, Inc.
June 18, 1997
Page 2
In our examination, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures thereon, the
legal capacity of natural persons executing such documents and the conformity to
authentic original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any state or other jurisdiction or as to any matters
of municipal law or the laws of any other local agencies with any state.
Based upon the facts set forth in the Registration Statement and
Officer's Certificate, it is our opinion that:
1. Commencing with the Company's taxable year ending December 31,
1985, the Company was organized in conformity with the requirements for
qualification as a real estate investment trust, 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 Internal Revenue Code
of 1986, as amended (the "Code").
2. The information in the Registration Statement set forth under the
caption "Certain Federal Income Tax Considerations to the Company," to the
extent that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by us an
is correct in all material respects.
No opinion is expressed as to any matter not discussed herein.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the Registration Statement or
Officer's Certificate may affect the conclusions stated herein. Moreover, the
Company's qualification and taxation as a real estate investment trust depends
upon the Company's ability to meet (through actual annual operating results,
distribution levels and diversity of stock ownership) the various qualification
tests imposed under the Code, the results of which have not been and will not be
reviewed by Latham & Watkins. Accordingly, no assurance can be given that the
actual results of the Company's operation for any one taxable year will satisfy
such requirements.
This opinion is rendered only to you and is solely for your benefit in
connection with the Registration Statement. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the use of our
name under the caption
<PAGE>
Health Care Property Investors, Inc.
June 18, 1997
Page 3
"Certain Federal Income Tax Considerations to the Company" in the Registration
Statement. This opinion may not be relied upon by you for any other purpose, or
furnished to, quoted to or relied upon by any other person, firm or corporation
for any purpose, without our prior written consent.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 12.1
HEALTH CARE PROPERTY INVESTORS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands, except ratios)
<TABLE>
<CAPTION>
Historical
---------------------------------------------------------------------
Three
Months
Year ended December 31, Ended
----------------------------------------------------------- March 31,
1992 1993 1994 1995 1996 1997
---------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expense ................................... $ 19,780 $ 19,728 $ 20,133 $ 19,339 $ 26,401 $ 6,762
Capitalized interest ............................... 163 932 332 594 1,017 210
Pro-rata share of unconsolidated partnerships' fixed
charges ........................................ 1,679 1,207 1,404 1,442 737 214
Amortization of debt expense, debt discounts and
interest factor in rental expense ............. 388 771 767 985 949 244
--------------------------------------------------------------------
Total .............................................. $ 22,010 $ 22,638 $ 22,636 $ 22,360 $ 29,104 $ 7,430
====================================================================
Earnings:
Income from operations ............................. $ 39,031 $ 47,506 $ 53,562 $ 60,395 $ 64,017 $ 16,090
Add back fixed charges ............................. 22,010 22,638 22,636 22,360 29,104 7,430
Less capitalized interest .......................... (163) (932) (332) (594) (1,017) (210)
--------------------------------------------------------------------
Total .............................................. $ 60,878 $ 69,212 $ 75,866 $ 82,161 $ 92,104 $ 23,310
====================================================================
Ratio of earning to fixed charges .................. 2.77 3.06 3.35 3.67 3.16 3.14
====================================================================
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our firm included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
Los Angeles, California
June 18, 1997
<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
HEALTH CARE PROPERTY INVESTORS, INC.
(Exact name of obligor as specified in its charter)
Maryland 33-0091377
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10990 Wilshire Boulevard, Suite 1200
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- -------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-29
UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 6th day of June, 1997.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
---------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin....................... $ 6,024,605
Interest-bearing balances............... 808,821
Securities:
Held-to-maturity securities............. 1,071,747
Available-for-sale securities........... 3,105,207
Federal funds sold in domestic offices
of the bank:.............................. 4,250,941
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ............................... 31,962,915
LESS: Allowance for loan and
lease losses ......................... 635,084
LESS: Allocated transfer risk
reserve............................... 429
Loans and leases, net of unearned
income, allowance, and reserve 31,327,402
Assets held in trading accounts........... 1,539,612
Premises and fixed assets (including
capitalized leases)..................... 692,317
Other real estate owned................... 22,123
Investments in unconsolidated
subsidiaries and associated
companies............................... 213,512
Customers' liability to this bank on
acceptances outstanding................. 985,297
Intangible assets......................... 590,973
Other assets.............................. 1,487,903
-----------
Total assets.............................. $52,120,460
===========
LIABILITIES
Deposits:
In domestic offices..................... $25,929,642
Noninterest-bearing ......11,245,050
Interest-bearing .........14,684,592
In foreign offices, Edge and
Agreement subsidiaries, and IBFs........ 12,852,809
Noninterest-bearing ................... 552,203
Interest-bearing ...................... 12,300,606
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the
bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased................. 1,360,877
Securities sold under agreements
to repurchase........................... 226,158
Demand notes issued to the U.S.
Treasury................................ 204,987
Trading liabilities....................... 1,437,445
Other borrowed money:
With original maturity of one year
or less............................... 2,312,556
With original maturity of more than
one year.............................. 20,766
Bank's liability on acceptances
executed and outstanding................ 1,014,717
Subordinated notes and debentures......... 1,014,400
Other liabilities......................... 1,721,291
-----------
Total liabilities......................... 48,095,648
-----------
EQUITY CAPITAL
Common stock.............................. 942,284
Surplus................................... 731,319
Undivided profits and capital
reserves................................ 2,354,095
Net unrealized holding gains
(losses) on available-for-sale
securities.............................. 7,030
Cumulative foreign currency
translation adjustments................. ( 9,916)
-----------
Total equity capital...................... 4,024,812
-----------
Total liabilities and equity
capital ........................... $52,120,460
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
- --------------------------------------------------------------------------------
