EXHIBIT 1.1
NATIONWIDE HEALTH PROPERTIES, INC.
Medium-Term Notes, Series B, Due Nine Months or More
From Date of Issue
DISTRIBUTION AGREEMENT
January 30, 1996
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Dear Sirs:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company")
confirms its agreement (the "Agreement") with Xxxxxxx, Xxxxx & Co. and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (each an "Agent"
and collectively the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes, Series B, described herein (the "Notes"). The Notes
are to be issued pursuant to an indenture (as the same may be amended or
restated from time to time, the "Indenture"), dated as of January 12, 1996,
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 $200,000,000 (or its equivalent based on the applicable exchange rate at
the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) aggregate
initial offering price of Notes by the Company directly or through one or both
of the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time, pursuant to an Officers'
Certificate delivered to the Trustee pursuant to Section 301 of the Indenture
(with an original copy thereof delivered to the Agents), reduce the authorized
aggregate initial offering price of the Notes (but not below the aggregate
initial offering price of Notes previously issued under the Indenture) or
authorize the issuance of additional Notes and that such additional Notes may be
distributed directly by the Company or through or to one or both
of 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 directly
to purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the related Agent or Agents) to an Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-65423) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933 (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 (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 (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 shall be provided to an
Agent by the Company for use in connection with the offering of the Notes which
is not 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
from and after the time it is first provided to an Agent for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment. Subject to the terms and conditions stated herein, the
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Company hereby appoints the Agents as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that
whenever the Company determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Terms Agreement (as hereafter
defined) relating to each such sale in accordance with the provisions of Section
3(b) hereof if requested by the applicable Agent. 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
and will not engage any other party to assist in the placement of the Notes.
The Agents are
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authorized to appoint sub-agents or to engage the services of any other broker
or dealer in connection with the offer or sale of the Notes.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon receipt
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of instructions from the Company, the Agents will use their reasonable efforts
to solicit purchases of such principal amount of Notes as the Company and the
Agents shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not 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 initial offering price of Notes
registered pursuant to the Registration Statement. No Agent will have
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, the offer to purchase Notes, other than those
offers rejected by such Agent. Each 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. The parties hereto agree
that no Agent shall be under any obligation to solicit purchases of Notes upon
the occurrence and continuation of any event described in Section 12(b) hereof,
irrespective of the date such event occurs.
(c) Solicitations as Agents; Purchases as Principal. In soliciting
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purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, the Agents shall act solely as agents for the
Company and not as principals. Each 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. No
Agent shall have any liability to the Company in the event any such purchase is
not consummated for any reason. No Agent shall have any obligation to purchase
Notes from the Company as principal, but either 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 pursuant to a Terms Agreement in accordance with Section
3(b) hereof if requested by the applicable Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
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placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, 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.
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SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of the acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or such Agent as
principal), as of the date of the delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
related Agent or Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that 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 Notes or similar changes) or 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 under the Registration Statement other than the Notes) (each
of the times referenced above being referred to herein as a "Representation
Date") as follows:
(i) Due Incorporation and Qualification. The Company has been
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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; and 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 would not have a material adverse effect on
the business or financial condition of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
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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 would not have a material adverse effect on the business or
financial condition of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of each
such Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-
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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) REIT Qualification. The Company has at all times operated
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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.
(iv) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the applicable requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the 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 the applicable 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 the applicable 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 those parts of the Registration Statement
which constitute the Trustee's Statement of Eligibility and Qualification
under the 1939 Act on Form T-1.
(v) Incorporated Documents. The documents incorporated by
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reference in the Prospectus, at the time they were filed with the
Commission, complied 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 and with the other information
in or incorporated by reference in the Prospectus, did 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 were made, not
misleading.
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(vi) Accountants. The accountants who certified the financial
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statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
(vii) Financial Statements. The financial statements and any
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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 of the dates indicated and the
consolidated results of their operations for the periods specified; and,
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; and any supporting schedules included
or incorporated by reference in the Registration Statement present fairly
the information required to be stated therein.
(viii) Material Changes or Material Transactions. Since the
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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 and (B) there have been no
material transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business.
(ix) Authorization, Execution and Delivery of this Agreement. The
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Company has duly authorized, executed and delivered this Agreement and any
Terms Agreement and each of this Agreement and any such Terms Agreement
constitutes the valid and binding agreement of the Company.
(x) The Indenture. The Indenture has been duly and validly
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authorized, executed and delivered by the Company and assuming it has been
duly and validly authorized, executed and delivered by the Trustee,
constitutes a legally valid and binding obligation of the Company,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equity principles.
(xi) The Notes. The Notes have been duly and validly authorized by
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the Company for issuance, offer and sale pursuant to this Agreement and,
when completed as contemplated by the Procedures (as hereinafter defined),
executed, authenticated and delivered pursuant to the provisions of the
Indenture and this Agreement against
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payment of the consideration set forth in the Prospectus or pursuant to any
Terms Agreement, will constitute legally valid and binding obligations of
the Company enforceable in accordance with their terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general equity principles, and
will be entitled to the benefits of the Indenture; and the Notes and the
Indenture conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xii) No Defaults; Compliance with Laws; Regulatory Approvals.
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Neither the Company nor any of its Significant Subsidiaries is in default
in the performance or observance of any material 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 may be bound, or to which any of their property or
assets is subject, which default would materially adversely affect the
business or financial condition of the Company and its subsidiaries
considered as one enterprise; neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or bylaws; the
execution, delivery and performance of this Agreement, any Terms Agreement
and the Indenture and the consummation of the transactions contemplated
herein and therein 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
Significant Subsidiaries pursuant to, any material 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 such subsidiary is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or, to
the best knowledge of the Company, any law, administrative regulation or
administrative or court order or decree; and 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, any Terms Agreement or the Indenture,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or as may be
required by state securities or Blue Sky laws.
(xiii) Legal Proceedings; Contracts. Except as set forth in the
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Registration Statement, 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 the Company or any
of its subsidiaries which is required to be disclosed in the
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Registration Statement or which might in the opinion of the Company result
in any material adverse change in the business or financial condition 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 Terms Agreement; 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 the Registration Statement, including ordinary routine
litigation incidental to its 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.
(xiv) Licenses. The Company owns or possesses or has obtained all
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material governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently conducted
where its ownership or lease of substantial properties or the conduct of
its business requires such ownership or possession or the obtaining of such
governmental licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(xv) Rating of the Notes. The Notes are rated at least "Ba1" by
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Xxxxx'x Investors Service, Inc. and at least "BBB-" by Standard & Poor's
Ratings Group.
(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 described in the Registration Statement or such as do not materially
adversely affect the value of such property and interests as reflected in
the Company's financial statements and do not materially interfere with the
use made and proposed to be made of such property and interests by the
Company and its subsidiaries; 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 do not materially
adversely affect the value of such real properties and interests as
reflected in the Company's financial statements; and no material real
property or buildings are held under lease by the Company or any of its
subsidiaries.
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(xvii) Investment Company Act. The Company is not required to be
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registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Additional Certifications. Any certificate signed by any
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director or officer of the Company and delivered to any Agent or to counsel to
the Agents in connection with an offering of Notes through one or more Agents as
agent or the sale of Notes to one or more Agents as principal shall be deemed a
representation and warranty by the Company to the applicable Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principal.
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(a) Solicitations as Agents. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, when acting as an agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, any such Agent will 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 the related 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.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the related Agent or Agents
and set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of Notes. Except as
may be otherwise provided in such supplement to the Prospectus, the Notes will
be issued in denominations of $1,000 and integral multiples thereof. All Notes
sold through the Agents as agents will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the related Agent or Agents.
(b) Purchases as Principal. Each sale of Notes to an Agent as
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principal shall be made in accordance with the terms contained herein and, if
requested by the applicable Agent, pursuant to a separate agreement which will
provide for the sale of the Notes to, and the purchase and reoffering thereof
by, such Agent. Each such separate agreement (which may be an oral agreement)
between
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an Agent and the Company is herein referred to as a "Terms Agreement". Unless
the context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any Terms Agreement between the Company
and any Agent. Each such Terms Agreement, whether oral or in writing, shall be
with respect to such information (as applicable) as is specified in Exhibit A
hereto. An Agent's commitment to purchase Notes as principal pursuant to any
Terms Agreement or otherwise 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 Terms Agreement
shall specify the principal amount of Notes to be purchased by the applicable
Agent pursuant thereto, the price to be paid to the Company for such Notes
(which, if not so specified in a Terms Agreement, shall be at a discount
equivalent to the applicable commission set forth in Schedule A hereto), the
time and place of delivery of and payment for such Notes, any provisions
relating to rights of, and default by, purchasers acting together with the
applicable Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. The
Agents may utilize a selling or dealer group in connection with the resale of
the Notes purchased. Such Terms Agreement shall also specify whether or not any
of the officer's certificate, opinions of counsel or comfort letter specified in
Sections 7(b), 7(c) and 7(d) hereof shall be required to be delivered by the
Company in connection therewith.
(c) Administrative Procedures. Administrative procedures with respect
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to the sale of Notes shall be agreed upon from time to time by the Agents and
the Company (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
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delivered by Section 5 hereof shall be delivered at the office of O'Melveny &
Xxxxx, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 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.
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The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
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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 (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) of the
receipt of any comments from the Commission
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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, and (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. 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. Except as otherwise provided
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in subsection (l) of this Section, the Company will give the Agents notice of
its intention to file or prepare any additional registration statement with
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 the establishment of or
change in, the interest rates, maturity or price of Notes or other similar
changes), whether by the filing of documents pursuant to the 1934 Act (other
than any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes), 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 in a form to which you or your counsel
shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
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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 Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) (other than an amendment or
supplement which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) 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,
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with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents 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.
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(e) Prospectus Revisions -- Material Changes. Except as otherwise
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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 reasonable opinion of counsel to 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 reasonable
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 agents and to cease sales of any Notes either
Agent may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the Commission such amendment or supplement,
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.
(f) Prospectus Revisions -- Periodic Financial Information.
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Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be 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 cause the
Registration Statement and the Prospectus to be amended or supplemented, whether
by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
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.
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Except as otherwise provided in subsection (l) 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 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
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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, by applying the provisions of
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Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 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
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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.
(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. Between the date of any Terms Agreement and
-------------------
the Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party thereto, directly or
indirectly, sell, offer to sell, contract to sell or otherwise dispose of, or
announce the offering of, any debt securities of the Company, or any security
exchangeable into such debt securities (other than
13
the Notes that are to be sold pursuant to such Terms Agreement and commercial
paper in the ordinary course of business), except as may otherwise be provided
in any such Terms Agreement.
(l) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsections (a), (b), (c), (e), (f),
(g) or (j) of this Section or the provisions of Section 7 hereof during any
period from the time (i) the Agents shall have received written notification
from the Company to suspend solicitation of purchases of the Notes in their
capacity as agents and (ii) the earlier of the date on which the Agents shall
not then hold any Notes as principal purchased pursuant to a Terms Agreement and
the date which is 30 days (nine months with respect to subsections (e) and (j)
of this Section) from the date on which the Agents shall have received written
notice from the Company to suspend solicitations of purchases of the Notes, to
the time the Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
any Agent.
(m) Use of Proceeds. The net proceeds from the sale of Notes will
---------------
be used by the Company as described in the Prospectus.
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of the Agents to purchase Notes as
principal pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained 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 and their counsel:
(1) Opinion of Company Counsel. The opinion of O'Melveny & Xxxxx,
--------------------------
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own its properties and
assets and to carry on its business as described in the Registration
Statement.
14
(iii) To the best of such counsel's knowledge, 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 (except for the State of Colorado), 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.
(iv) Nationwide Health Properties Finance Corporation, a
Delaware corporation, has been duly incorporated and is validly
existing in good standing under the laws of the jurisdiction of its
incorporation with corporate power to conduct its business as
currently conducted.
(v) The execution, delivery and performance of this Agreement
and, if applicable, the relevant Terms Agreement, have each been duly
authorized by all necessary corporate action on the part of the
Company, and have each been duly executed and delivered by the
Company.
(vi) The Indenture has been qualified under the 1939 Act.
(vii) The execution, delivery and performance of the
Indenture have been duly authorized by all necessary corporate action
on the part of the Company, the Indenture has been duly executed and
delivered by the Company and constitutes the legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally. Such counsel may state, however, that
enforceability of the Indenture is subject to the effect of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(viii) The Notes are in forms permitted by the Indenture,
have been duly authorized by all necessary corporate action on the
part of the Company and, when completed as contemplated by the
Procedures, executed and authenticated as specified in the Indenture
and delivered against payment of the purchase price therefor pursuant
to this Agreement as provided in the
15
Prospectus and any Terms Agreement, will be legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally; and the Notes will be entitled to the
benefits of the Indenture. Such counsel may state, however, that
enforceability of the Notes is subject to the effect of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(ix) The Registration Statement has been declared effective
under the 1933 Act and, to their knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued or
threatened by the Commission.
(x) The Registration Statement, on the date it became
effective, appeared on its face to comply in all material respects
with the requirements as to form for registration statements on Form
S-3 under the 1933 Act and the related rules and regulations in effect
at the date of effectiveness, except no opinion need be expressed
concerning the financial statements and other financial information
contained or incorporated by reference therein or the Statement of
Eligibility of the Trustee on Form T-1 filed as an exhibit thereto.
(xi) Each document filed pursuant to the 1934 Act (other than
the financial statements and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) and incorporated by reference in the Prospectus, on the
respective dates they were filed, appeared on their face to comply in
all material respects with the 1934 Act and the 1934 Act Regulations
thereunder in effect at the respective dates of their filing.
(xii) The statements in the Prospectus under the captions
"Description of Notes" and "Description of Debt Securities", and
"United States Taxation", to the extent that they constitute matters
of law, summaries of legal matters or documents, or legal conclusions,
have been reviewed by them and are correct in all material respects.
(xiii) No order, authorization, consent, permit or approval
of any governmental authority is required on the part of the Company
for the consummation of the
16
transactions contemplated by this Agreement, except such as may be
required under the 1933 Act or the 1933 Act Regulations or the 1939
Act or the 1939 Act Regulations or state securities laws.
(xiv) The Company is not an "investment company" within the
meaning of the 1940 Act.
(xv) 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 Registration Statement, other than
those disclosed therein.
(xvi) To the best of such counsel's knowledge, except as
otherwise stated in the Prospectus, the Company's execution and
delivery of this Agreement, any Terms Agreement, the Indenture and the
incurrence of the obligations and consummation of the transactions
contemplated herein and therein will not (A) 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 Significant Subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel to which the Company
or any of such 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 such subsidiaries is subject, the effect of which would be
material to the Company and its subsidiaries taken as a whole, (B)
result in any violation of the provisions of the charter or bylaws of
the Company or (C) result in any violation of any applicable law,
administrative regulation or administrative or court decree the effect
of which would be material to the Company and its subsidiaries taken
as a whole.
(xvii) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement or to be filed or incorporated by reference as
an exhibit thereto which is not described or referred to therein or
filed or incorporated by reference as an exhibit thereto.
(xviii) Based upon current law, including relevant statutes,
regulations and judicial and administrative precedent (which is
subject to change on a retroactive basis), and subject to all of the
limitations, qualifications, conditions and factual assumptions set
forth in the tax opinion of such counsel's firm dated
17
as the date of the opinion delivered pursuant to this Section 5(a)(1),
the Company met each of the requirements for qualification as a REIT
under the Code, for its taxable years ended December 31, 1985,
December 31, 1986, December 31, 1987, December 31, 1988, December 31,
1989, December 31, 1990, December 31, 1991, December 31, 1992,
December 31, 1993, and December 31, 1994 and for the nine months ended
September 30, 1995 (and such later taxable years as shall be
applicable at the date of such opinion), and if the Company operates
subsequent to September 30, 1995 (or such later date as shall be
applicable) in the same manner as prior to such date, it will continue
to so qualify. However, such counsel may state that they are unable
to opine whether the Company will actually continue to qualify as a
REIT because such qualification will depend on future transactions and
events that cannot be known at the date of such opinion.
Such counsel shall affirm that the Agents may rely upon such
counsel's tax opinion dated as of the date of the opinion delivered
pursuant to Section 5(a)(1) hereof to the same extent as if it were
set forth herein.
(2) Opinion of Counsel to the Agents. The opinion of Xxxxx &
--------------------------------
Wood, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i), (v) and (vi) through (x),
inclusive, above.
(3) In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, O'Melveny & Xxxxx and Brown & Wood shall each
additionally state that they do not believe that the Registration
Statement, at the time it became effective, and 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 and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference in the
Registration Statement and Prospectus), contains or contained an untrue
statement of a material fact or omits or omitted to state a material fact
required to be stated therein or necessary in order 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 a Terms Agreement pursuant to Section 7(c) hereof) at the date of any
Terms Agreement and at the Settlement Date with respect thereto, as the
case may be, contains or contained an untrue statement of a material fact
or omits or omitted to state a material fact necessary in order to make the
statements
18
therein, in the light of the circumstances under which they were made, not
misleading. Such counsel may state that they express no view as to the
Statement of Eligibility and Qualification on Form T-1 filed in connection
with the Registration Statement or the financial statements and other
financial and statistical data included or incorporated by reference in
such Registration Statement or Prospectus.
(b) Officers' 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 Terms Agreement, 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 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) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to their knowledge, 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 Xxxxxx Xxxxxxxx LLP, dated as of the date hereof and in
form and substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement Date
---------------
with respect to any Terms Agreement, 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 the Agent party thereto, any Terms Agreement) may be terminated by any
of the Agents (as to itself only) by notice to the Company at any time and any
such termination shall be without liability of any party to any other
19
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 agreements set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 11 hereof and
the provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold
--------------------------------------
through the Agents.
-------------------
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. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by the
applicable Agent in the performance of its obligations hereunder, the Company
will reimburse such Agent on an equitable basis for its loss of the use of the
funds for the period such funds were credited to the Company's account.
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, and each delivery of Notes to such
Agent pursuant to a Terms Agreement, 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. Subject to the provisions of
-----------------------------------
Section 4(l) hereof, each time that 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 Notes or similar changes) or there is filed with the
Commission any document incorporated by reference
20
into the Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the Registration Statement
other than the Notes) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to such Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to such Agent 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 such Agent to the effect that the
statements contained in the certificate referred to in Section 5(b) hereof which
were last furnished to such Agent 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.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions
-------------------------------------
of Section 4(l) hereof, each time that 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 other than by an amendment or
supplement which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) or there is filed with the
Commission any document incorporated by reference into the Prospectus (other
than any Quarterly Report on Form 10-Q or any Current Report on Form 8-K, unless
such Agent shall otherwise reasonably request) or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to such Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent and to counsel to the Agents a written opinion of O'Melveny & Xxxxx
or other counsel satisfactory to such Agent 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 such Agent, of the same tenor as the opinions referred to in
Sections 5(a)(1) and (a)(3) 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 opinions; or, in lieu of such opinions, counsel last
furnishing such opinion to such Agent shall furnish such Agent with a letter
substantially to the effect that such Agent 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
21
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions
--------------------------------------
of Section 4(l) hereof, each time that 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
(if required pursuant to the terms of a Terms Agreement) the Company sells Notes
to such Agent pursuant to a Terms Agreement, the Company shall cause Xxxxxx
Xxxxxxxx LLP or other independent certified public accountants satisfactory to
such Agent, forthwith to furnish such Agent with a letter, 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 such Agent, of the same tenor as the letter referred to
in 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 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, Xxxxxx Xxxxxxxx LLP or other independent certified public accountants
satisfactory to such Agent, may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of such Agent, 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 any Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact 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 to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
22
(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, as incurred
(including the reasonable fees and disbursements of counsel chosen by the
Agents), 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 the Prospectus (or any amendment or supplement thereto), and
provided further, however, that the indemnity agreement contained in this
subsection 8(a) shall not inure to the benefit of an Agent with respect to any
loss, liability, claim, damage or expense arising from the sale of Notes by such
Agent to any person if all of the following occur: (x) such Agent has failed to
send or give a copy of the Prospectus (excluding documents incorporated by
reference), as it may then have been amended or supplemented, to that person at
or prior to the time of written confirmation of such sales to such person and
such delivery to such person is required by the 1933 Act; (y) the untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission of a material fact from a previous form of the Prospectus was
corrected in the Prospectus, as then amended or supplemented; and (z) such Agent
shall have been notified as to such amendment or supplement as set forth herein
and the Company shall have delivered copies of the Prospectus, as so amended or
supplemented, to such Agent.
(b) Indemnification of Company. Each Agent agrees, severally and not
--------------------------
jointly, 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
23
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) General. Each indemnified party shall give prompt 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 of such commencement 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 assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party and the
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. 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.
(d) Foreign Currency Judgments. The Company agrees to indemnify each
--------------------------
Agent against any loss incurred by such Agent as a result of any judgment or
order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which such Agent is able
to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
24
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
each Agent on the other from the offering of the Notes to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
per capita allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, an Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Notes purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue
25
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this Section 9
to contribute are several in proportion to the respective purchases made by or
through it to which such loss, claim, damage or liability (or action in respect
thereof) relates and are not joint.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(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 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 to 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 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;
26
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (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 or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or 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.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 30 days' written notice of such termination to
the other parties hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement or Other Agreement. (A) An Agent
---------------------------------------------------
may terminate any Terms Agreement, and (B) any purchaser of Notes through an
Agent as agent hereunder may terminate such agreement to purchase Notes,
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 Terms Agreement
or agreement to purchase notes 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
27
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
the applicable Agent or such purchaser, as the case may be, impracticable to
market the Notes subject to such Terms Agreement or agreement to purchase Notes
or enforce contracts for the sale of such 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 federal, California or New York authorities or if a
banking moratorium shall have been declared by the relevant authorities in the
country or countries of origin of any foreign currency or currencies in which
the Notes subject to such Terms Agreement or agreement to purchase Notes are
denominated or payable, 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 Terms Agreement or agreement to purchase Notes shall have been
lowered since that date or if any such rating agency shall have publicly
announced since that date that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, or (v) if
there shall have come to the attention of the Agent or Agents party to such
Terms Agreement or such purchaser, as the case may be, any facts that would
cause such Agent or Agents or purchaser, as the case may be, to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of Notes
subject to such Terms Agreement or agreement to purchase Notes, contained 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. The
Company and the Agents agree that no Agent shall have any duty or obligation
whatsoever to exercise the judgment permitted under this subsection on behalf of
any purchaser of Notes.
(c) General. In the event of any such termination, no party will have
-------
any liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased pursuant to a Terms Agreement 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 its agent of the Note
or Notes relating thereto has not occurred, the obligations set forth in Section
5 hereof and 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
(provided, however, that, except as provided in
28
clause (iii) below, the Company's obligations pursuant to Sections 4 and 7
hereof shall in any event terminate no later than the date that is 30 days (nine
months with respect to subsections (e) and (j) of Section 4 hereof) after the
time of such termination), and (iii) the covenant set forth in Section 4(h)
hereof, the provisions of Section 5 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections
10, 11 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, by telecopier or by telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Nationwide Health Properties, Inc.
0000 XxxXxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Xxxxxxxx: 000-000-0000
If to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (000) 000-0000
If to Xxxxxxx, Xxxxx & Co.:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Department
Credit Control, Medium-Term Notes
Telecopy: (000) 000-0000
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.
29
SECTION 14. Governing Law.
-------------
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 New York
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.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each of which shall
be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or the provisions hereof.
30
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
between the Agents and the Company in accordance with its terms.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By: ______________________________
Name:
Title:
Accepted:
_________________________________
(Xxxxxxx, Xxxxx & Co.)
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Authorized Signatory
31
Exhibit A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ___%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period
from _______ to ________.
[ ] Actual/360 for the period from ______ to ________.
[ ] Actual/Actual for the period from _______ to
________.
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] Actual/360 for the period from ______ to ________.
[ ] Actual/Actual for the period from _______ to
________.
[ ] Other:
A-1
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, specification as to the requirements for:
Officers' 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.
A-2
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note by such Agent equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year .............. .125%
From 1 year to less than 18 months ............. .150%
From 18 months to less than 2 years ............ .200%
From 2 years to less than 3 years .............. .250%
From 3 years to less than 4 years .............. .350%
From 4 years to less than 5 years .............. .450%
From 5 years to less than 6 years .............. .500%
From 6 years to less than 7 years .............. .550%
From 7 years to less than 10 years .............. .600%
From 10 years to less than 15 years ............ .625%
From 15 years to less than 20 years ............ .675%
From 20 years to 30 years ...................... .750%
From more than 30 years ........................ *
________________________________________
* As agreed upon by the Company and the applicable Agent at the related time of
sale.
Sch. A
