EXHIBIT 1.2
$.
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
. . due . ., .
PURCHASE AGREEMENT
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. ., 199.
_________________________
_________________________
_________________________
_________________________
_________________________
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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
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
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Underwriters deem advisable after this Agreement has been executed and
delivered.
Section 1. Representations and Warranties. The Company represents and
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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
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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 ("XXXXX").
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(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)
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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.
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(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
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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
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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
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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
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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 Xxxxxx &
Xxxxxxx, 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
14
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
(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
0000 Xxx.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxx &
Xxxxxxx, 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 Xxxxxx
X. Xxxxxxx, 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
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 Xxxxx &
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
(5) In giving their opinions required by subsections (b)(1) and
(b)(4), respectively, of this Section, Xxxxxx & Xxxxxxx and Xxxxx &
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, Xxxxxx & Xxxxxxx
and Xxxxx & 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
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, 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
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 Xxxxxx Xxxxxxxx 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 Xxxxxx
Xxxxxxxx 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
(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 0000 Xxx) to the extent
20
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 XXXXX.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity
21
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 0000 Xxx) 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
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
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 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, President and Chief
Executive Officer, with a copy to Xxxxxx X. Xxxxx, Esq. at Xxxxxx & Xxxxxxx, 000
Xxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
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
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
SCHEDULE A
Principal
Amount of
Underwriters Securities
----------------------------------- ----------
---------
Total. . . . . . . . . . . . . . . . . $
=========
