Exhibit 1.1
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland Corporation)
Medium-Term Notes, Series F
Due Nine Months or More from Date of
Issue
DISTRIBUTION AGREEMENT
August 27, 2004
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
Banc of America Securities LLC
Credit Suisse First Boston LLC
Goldman, Sachs & Co.
Dear Sirs:
Health Care Property Investors,
Inc., a Maryland corporation (the “Company”), confirms
its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Banc of America Securities LLC, Credit Suisse First
Boston LLC and Goldman, Sachs & Co. (each an
“Agent” and, collectively, the “Agents”)
with respect to the issue and sale by the Company of its
Medium-Term Notes described herein (the “Notes”). The
Notes are to be issued pursuant to an indenture (the
“Indenture”, which term as used herein includes any
instrument establishing the form and terms of the Notes) dated as
of September 1, 1993 between the Company and The Bank of New York,
as trustee (the “Trustee”).
As of the date hereof, the Company
has authorized the issuance and sale of up to $200,000,000
aggregate initial offering price of Notes to or through the Agents
pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold to or
distributed through the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized
as of the date hereof.
This Agreement provides both for the
sale of Notes by the Company to one or more of the Agents as
principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from
time to time be agreed to by the Company and the applicable Agent)
in which case the applicable Agent will act as agent of the Company
in soliciting Note purchases.
On December 15, 2003, the Company
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No.
333-111174) for the registration of $1,500,000,000 aggregate
offering price of common stock, par value $1.00 per share,
preferred stock, par value $1.00 per share, and debt securities,
including the Notes, under the Securities Act of 1933, as amended
(the “1933 Act”) and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (such rules and regulations, the
“1933 Act Regulations”). Such registration statement
has been declared effective by the Commission and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended
(the “1939 Act”). Such registration statement (and any
further registration statements which may be filed by the Company
for the purpose of registering additional Notes and in connection
with which this Agreement is included or incorporated by reference
as an exhibit) and the prospectus constituting a part thereof, and
any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the “1934
Act”), the 1933 Act or otherwise, are referred to herein as
the “Registration Statement” and the
“Prospectus”, respectively, except that if any revised
prospectus and/or prospectus supplement relating to the Notes shall
be provided to the Agents by the Company for use in connection with
the offering of the Notes, whether or not such revised prospectus
and/or prospectus supplement relating to the Notes is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term “Prospectus” shall refer to such
revised prospectus and/or prospectus supplement relating to the
Notes from and after the time it is first provided to the Agents
for such use. Notwithstanding the foregoing, for purposes of this
Agreement any prospectus supplement prepared with respect to the
offering of a series of debt securities other than the Notes shall
not be deemed to have supplemented the Prospectus.
SECTION 1. Appointment as
Agent.
(a) Appointment . Subject to
the terms and conditions stated herein and subject to the
reservation by the Company of the right to appoint, upon two
business days’ prior written notice to the Agents, additional
persons as “Agents” hereunder (provided that each such
additional person agrees to be bound by all of the terms of this
Agreement (including Schedule A)), the Company hereby agrees that
Notes will be sold exclusively to or through the Agents. Each Agent
is authorized to engage the services of any other broker or dealer
in connection with the offer or sale of the Notes purchased by such
Agent as principal for resale to others but is not authorized to
appoint sub-agents. In connection with sales by the Agents of Notes
purchased by the Agents as principal to other brokers or dealers,
the Agents may allot any portion of the discount they have received
in connection with such purchase from the Company to such brokers
or dealers. The Company agrees that during the period the Agents
are acting as the Company’s agents hereunder, the Company
will not contact or solicit potential investors to purchase the
Notes. Notwithstanding anything to the contrary contained herein,
the Company may accept offers to purchase Notes through an agent
other than the Agents if (i) the Company shall not have solicited
such offers, (ii) the Company and such agent shall have entered
into an agreement with the same terms as this Agreement (including
Schedule A) and (iii) the Company shall have notified the Agents
promptly after the acceptance of any such offer and shall have
provided the Agents with a copy of such agreement in written form
promptly following the execution thereof.
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(b) Sale of Notes . The
Company shall not sell or approve the solicitation of purchases of
Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal amount of
Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to
the aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal .
No Agent shall have any obligation to purchase Notes from the
Company as principal, but each Agent may agree from time to time to
purchase Notes as principal. Any such purchase of Notes by an Agent
as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent .
If agreed upon by an Agent and the Company, such Agent acting
solely as agent for the Company and not as principal will solicit
purchases of the Notes. Such Agent will communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes
solicited by such Agent on an agency basis, other than those offers
rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent’s agreement contained herein.
The Company may accept or reject any proposed purchase of the
Notes, in whole or in part, and any such rejection shall not be
deemed a breach of the Company’s agreement contained herein.
Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company.
Such Agent shall not have any liability to the Company in the event
any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a
purchaser whose offer it has accepted, the Company shall (i) hold
such Agent harmless against any loss, claim or damage arising from
or as a result of such default by the Company and (ii)
notwithstanding such default, pay to such Agent any commission to
which it would be entitled in connection with such sale.
(e) Reliance . The Company
and the Agents agree that any Notes purchased by an Agent shall be
purchased, and any Notes the placement of which an Agent arranges
shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided
herein.
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SECTION 2. Representations and
Warranties.
(a) The Company represents and
warrants to each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of
Notes (whether from such Agent as principal or through such Agent
as agent), as of the date of each delivery of Notes (whether to
such Agent as principal or through such Agent as agent) (the date
of each such delivery to such Agent as principal being hereafter
referred to as a “Settlement Date”), and as of any time
that the Registration Statement or the Prospectus shall be amended
or supplemented, including by the filing with the Commission of any
document incorporated by reference into the Prospectus (each of the
times referenced above being referred to herein as a
“Representation Date”) as follows:
(i) Due Incorporation and
Qualification . The Company (A) has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Maryland with corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus; (B) has the requisite corporate
power and authority to execute and deliver this Agreement, the
Indenture and the Notes and to perform its obligations hereunder
and thereunder; (C) has duly authorized, executed and delivered
this Agreement and this Agreement constitutes the valid and binding
agreement of the Company; (D) is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; (E) is in substantial compliance with all laws,
ordinances and regulations of each state in which it owns
properties that are material to the properties and business of the
Company and its subsidiaries considered as one enterprise in such
state; and (F) commencing with its taxable year ending December 31,
1985 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 any
predecessor statute thereto, and intends to continue to operate in
such manner.
(ii) Subsidiaries . Each
subsidiary of the Company which is a significant subsidiary (each,
a “Significant Subsidiary”) as defined in Rule 405 of
Regulation C of the 1933 Act Regulations has been duly 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
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; all of the issued and outstanding
capital stock of each such corporate subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable
and, except for directors’ qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and all of the issued and outstanding partnership interests
of each such subsidiary which is a partnership have been duly
authorized (if applicable) and validly issued and are fully paid
and non-assessable and (except for other partnership interests
described in the Prospectus) are owned by the Company, directly or
through corporate subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Registration Statement and
Prospectus . The Company meets the requirements for use of Form
S-3 under the 1933 Act and the 1933 Act Regulations. At the time
the Registration Statement and any post-effective amendments
thereto became
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effective, the Registration
Statement complied, and as of the applicable Representation Date
will comply, in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations (including Rule 415(a) of 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 each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. No stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The
Prospectus, as of the date hereof (unless the term
“Prospectus” refers to a prospectus which has been
provided to the Agents by the Company for use in connection with
the offering of the Notes 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
Agents for such use) does not, and as of each Representation Date
will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
the 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 the Prospectus
or to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification of the Trustee under the
1939 Act filed as an exhibit to the Registration Statement (the
“Form T-1”). For purposes of this Section 2(a), all
references to the Registration Statement, any post-effective
amendments thereto and the Prospectus shall be deemed to include,
without limitation, any electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system
(“EDGAR”).
(iv) Incorporated Documents .
The documents incorporated or deemed to be incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the “1934 Act Regulations”),
and, when read together and with the other information in the
Prospectus, at the respective times the Registration Statement and
any amendments thereto became effective and at each Representation
Date did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light
of the circumstances under which they were or are made, not
misleading.
(v) Independent Accountants .
The accountants who audited the financial statements and supporting
schedules included or incorporated by reference in the
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Registration Statement and the
Prospectus were independent public accountants as required by the
1933 Act and the 1933 Act Regulations, as of the date of their
report.
(vi) Financial Statements .
The financial statements and any supporting schedules of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company
and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; and, except
as otherwise stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis; and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the
selected financial data and the summary financial information
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus; and the pro forma financial statements and the related
notes thereto (if any) included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and
circumstances referred to therein; and the Company’s ratios
of earnings to fixed charges included in the Prospectus under the
caption “Ratio of Earnings to Fixed Charges” and in
Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the
Commission.
(vii) Authorization and Validity
of this Agreement, the Indenture and the Notes . This Agreement
has been duly authorized, executed and delivered by the Company
and, upon execution and delivery by the Agents, will be a valid and
legally binding agreement of the Company; the Indenture has been
duly authorized, executed and delivered by the Company and is a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights of creditors
or by general equity principles; the Notes have been duly and
validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture against payment
of the consideration therefor specified in the Prospectus or agreed
upon pursuant to the provisions of this Agreement, the Notes will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights of creditors or by general equity principles; the Notes will
be substantially in the form heretofore delivered to the Agents and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and each holder of Notes will be
entitled to the benefits of the Indenture.
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(viii) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (in each case, as supplemented or amended), except as
otherwise stated therein or contemplated thereby, (a) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (b) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (c)
except for regular quarterly dividends on the Company’s
Common Stock and Preferred Stock, par value $1.00 per share, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(ix) No Defaults or Conflicts
. Neither the Company nor any of its subsidiaries is in violation
of its charter or bylaws or in material default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of
its subsidiaries is subject and in which the violation or default
might result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; and the execution, delivery and performance of
this Agreement, the Indenture and the Notes 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
bylaws of the Company or any law, administrative regulation or
administrative or court order or decree.
(x) No Authorization, Approval or
Consent Required . No consent, approval, authorization, order
or decree of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the offering,
issuance or sale of Notes hereunder, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities
(“Blue Sky”) laws.
(xi) Legal Proceedings;
Contracts . Except as disclosed in the 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 or affecting,
the Company or any of its subsidiaries, which is required to be
disclosed in the Registration Statement, or which might result in
any material
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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 to the
Company; 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) Title to Property . The
Company and its subsidiaries have good title to all real property
or interests in real property owned by the Company or any of its
subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are stated in or included
in documents incorporated or deemed to be incorporated by reference
in the Prospectus or such as would not materially adversely affect
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and at the time the Company and its
subsidiaries first acquired title or such interest in such real
property, the Company and its subsidiaries obtained satisfactory
confirmations (consisting of policies of title insurance or
commitments or binders therefor, opinions of counsel based upon the
examination of abstracts or other evidence deemed appropriate by
the Company under the circumstances) confirming the foregoing. To
the best knowledge of the Company, the instruments securing its
real estate mortgage loans in favor of the Company and its
subsidiaries 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 interests in relation to the Company and its
subsidiaries considered as one enterprise; and at the time the
Company and its subsidiaries first acquired an interest in such
real estate mortgage loans, the Company and its subsidiaries
obtained satisfactory confirmations (consisting of policies of
title insurance or commitments or binders therefor, opinions of
counsel based upon the examination of abstracts, or other evidence
deemed appropriate by the Company under the
circumstances).
(xiii) Investment Company Act
. The Company is not required to be registered under the Investment
Company Act of 1940, as amended (the “1940
Act”).
(xiv) Rating of the Notes .
The Medium-Term Note Program under which the Notes are issued (the
“Program”), as well as the Notes, are rated at least
“Baa2” by Moody’s Investors Service, Inc. and
“BBB+” by Standard & Poor’s Ratings Group, or
such other rating as to which the Company shall have most recently
notified the Agents pursuant to Section 4(a) hereof.
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(b) Additional Certifications
. Any certificate signed by any director or officer of the Company
on behalf of the Company and delivered to an Agent or to counsel
for the Agents in connection with an offering of Notes through an
Agent as agent or the sale of Notes to an Agent as principal shall
be deemed a representation and warranty by the Company to the Agent
as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
SECTION 3. Purchases as
Principal; Solicitations as Agent.
(a) Purchases as Principal .
Unless otherwise agreed by an Agent and the Company, Notes shall be
purchased by the Agents as principal. Such purchases shall be made
in accordance with terms agreed upon by an Agent and the Company
(which terms shall be agreed upon orally, with written confirmation
prepared by such Agent and mailed to the Company). An Agent’s
commitment to purchase Notes as principal shall be deemed to have
been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth. Each such purchase of Notes by an
Agent shall be made by such Agent with the intention of reselling
them as soon as practicable, in the sole judgment of such Agent.
Each purchase of Notes, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. An Agent
may engage the services of any other broker or dealer in connection
with the resale of the Notes purchased as principal and may allow
any portion of the discount received in connection with such
purchases from the Company to such brokers and dealers. At the time
of each purchase of Notes by an Agent as principal, such Agent
shall specify the requirements for the stand-off agreement,
officer’s certificate, opinion of counsel and comfort letter
pursuant to Sections 4(k), 7(b), 7(c), 7(d) and 7(e) hereof,
respectively.
(b) Solicitations as Agent .
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an
agent of the Company, will use its reasonable efforts to solicit
offers to purchase the Notes upon the terms and conditions set
forth herein and in the Prospectus. All Notes sold through an Agent
as agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase
the Notes through an Agent, as agent, commencing at any time for
any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of
purchases from the Company until such time as the Company has
advised such Agent that such solicitation may be
resumed.
The Company agrees to pay each Agent
a commission, in the form of a discount or otherwise as agreed to
by the Company and such Agent, equal to the applicable percentage
of the principal amount of each Note sold by the Company as a
result of a solicitation made by such Agent as set forth in
Schedule A hereto.
(c) Administrative Procedures
. The aggregate principal amount, purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company
and the Agents and set forth in a pricing
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supplement to the Prospectus to be prepared in
connection with each sale of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 or any larger amount that is an
integral multiple of $1,000. Administrative procedures with respect
to the sale of Notes shall be agreed upon from time to time by the
Agents, the Company and the Trustee (the “Procedures”).
The Agents and the Company agree to perform the respective duties
and obligations specifically provided to be performed by them in
the Procedures.
(d) Delivery of Program
Commencement Documents . The documents required to be delivered
by Section 5 hereof shall be delivered at the offices of Latham
& Watkins LLP, 650 Town Center Drive, Suite 2000, Costa Mesa,
California 92626 on the date hereof, or at such other time or place
as the Agents and the Company may agree.
SECTION 4. Covenants of the
Company.
The Company covenants with each
Agent as follows:
(a) Notice of Certain Events
. The Company will notify the Agents immediately, 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 which will be incorporated or deemed to be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
or inquiries from the Commission relating to the Registration
Statement or the Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (vi) of any change of which the
Company has knowledge in the rating assigned by any nationally
recognized statistical rating organization to the Program or any
debt securities (including the Notes) of the Company, or any public
announcement of which the Company has knowledge by any nationally
recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or any
withdrawal of which the Company has knowledge by any nationally
recognized statistical rating organization of its rating of the
Program or any such debt securities, and (vii) of the issuance by
any state securities commission or other regulatory authority of
any order suspending the qualification or the exemption from
qualification of the Notes under state securities or Blue Sky laws
or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance 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.
(b) Notice of Certain Proposed
Filings . The Company will give the Agents advance notice of
its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates, maturity or
price of Notes), whether by the filing of documents
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pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish the Agents with copies of any such
amendment or supplement or other documents proposed to be filed or
prepared.
(c) Copies of the Registration
Statement and the Prospectus . The Company will deliver to the
Agents as many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith and documents incorporated or
deemed to be 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) as the Agents shall 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 so long as the Agents are required to deliver, under the
1933 Act or the 1934 Act, a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) Preparation of Pricing
Supplements . The Company will prepare, with respect to any
Notes to be sold through or to an Agent pursuant to this Agreement,
a Pricing Supplement with respect to such Notes in a form
previously approved by such Agent and will file such Pricing
Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the Commission on the fifth business
day after the date on which such Pricing Supplement is first
used.
(e) Revisions of Prospectus
— Material Changes . Except as otherwise provided in
subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition
