UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
January 23, 2012 (January 18, 2012)
HCP, INC.
(Exact Name of Registrant as Specified in Charter)
Maryland |
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001-08895 |
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33-0091377 |
(State or other Jurisdiction of Incorporation) |
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(Commission File No.) |
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(IRS Employer Identification No.) |
3760 Kilroy Airport Way
Suite 300
Long Beach, California 90806
(Address of principal executive offices, including zip code)
(562) 733-5100
(Registrants telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 8.01. Other Events.
On January 18, 2012, HCP, Inc., a Maryland corporation (the Company), entered into an underwriting agreement (the Underwriting Agreement) with the underwriters named therein (the Underwriters) relating to the sale by the Company of $450 million aggregate principal amount of 3.75% senior unsecured notes due 2019 (the Notes). On January 23, 2012, the Company completed its underwritten public offering of the Notes (the Offering). The net proceeds of the Offering are approximately $443.7 million, which will be used to repay borrowings under the Companys revolving credit facility and for general corporate purposes. Additional details related to this Offering may be found in the Prospectus Supplement dated January 18, 2012 (the Prospectus Supplement), which was filed with the Securities and Exchange Commission (the Commission) on January 20, 2012.
The Notes are governed by the terms of the Indenture dated September 1, 1993 (the Base Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as trustee (the Trustee), which was filed as Exhibit 4.2 to the Companys Registration Statement on Form S-3/A (Registration No. 333-86654) filed with the Commission on May 21, 2002, as supplemented by the Supplemental Indenture dated January 24, 2011, between the Company and the Trustee (the Supplemental Indenture), which was filed as Exhibit 4.1 to the Companys Current Report on Form 8-K filed with the Commission on January 24, 2011.
The Notes will mature on February 1, 2019 and the Company will pay interest on the Notes semi-annually on February 1 and August 1, beginning on August 1, 2012. The Notes are senior unsecured obligations and rank equally with all of the Companys existing and future senior unsecured indebtedness.
The Company may redeem all or part of the Notes at any time at its option at a redemption price equal to the greater of: (i) 100% of the principal amount of the Notes to be redeemed, or (ii) the make-whole amounts applicable to the Notes to be redeemed as set forth in the in the section titled Description of the Notes Optional Redemption in the Prospectus Supplement. In addition, the Notes are redeemable at a redemption price equal to 100% of the principal amount to be redeemed 90 days or fewer before their maturity. For more information, see the section entitled Description of the Notes Optional Redemption in the Prospectus Supplement.
The Notes have been registered under the Securities Act of 1933, as amended, pursuant to an effective Registration Statement on Form S-3ASR (333-161721), filed with the Commission on September 4, 2009. The description of the Base Indenture, the Supplemental Indenture and the Notes are summaries and are qualified in their entirety by the terms of the Base Indenture, the Supplemental Indenture and the form of the Notes. Copies of the Underwriting Agreement, the Base Indenture (as previously filed), Supplemental Indenture (as previously filed) and the form of the Notes are filed as exhibits hereto and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) |
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Exhibits |
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1.1 |
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Underwriting Agreement by and between the Company and the Underwriters, dated January 18, 2012 |
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4.1 |
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Form of 3.75% Senior Notes due 2019 |
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5.1 |
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Opinion of Ballard Spahr LLP |
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5.2 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP |
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8.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters |
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12.1 |
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Statement regarding computation of ratios of earnings to fixed charges and ratio of earnings to fixed charges and preferred stock dividends |
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12.2 |
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Statement regarding computation of pro forma ratios of earnings to fixed charges and pro forma ratio of earnings to fixed charges and preferred stock dividends |
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23.1 |
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Consent of Ballard Spahr LLP (included in Exhibit 5.1) |
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23.2 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2) |
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23.3 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1) |
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99.1 |
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Text of the Press Release dated January 18, 2012 |
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99.2 |
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Information relating to Item 14 of the Registration Statement on Form S-3 (333-161721) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: January 23, 2012 |
HCP, INC. | |
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By: |
/s/ Timothy M. Schoen |
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Name: |
Timothy M. Schoen |
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Title: |
Executive Vice President - |
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Chief Financial Officer |
Exhibit Index
Exhibit Number |
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Description |
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1.1 |
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Underwriting Agreement by and between the Company and the Underwriters, dated January 18, 2012 |
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4.1 |
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Form of 3.75% Senior Notes due 2019 |
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5.1 |
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Opinion of Ballard Spahr LLP |
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5.2 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP |
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8.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax matters |
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12.1 |
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Statement regarding computation of ratios of earnings to fixed charges and ratio of earnings to fixed charges and preferred stock dividends |
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12.2 |
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Statement regarding computation of pro forma ratios of earnings to fixed charges and pro forma ratio of earnings to fixed charges and preferred stock dividends |
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23.1 |
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Consent of Ballard Spahr LLP (included in Exhibit 5.1) |
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23.2 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2) |
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23.3 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 8.1) |
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99.1 |
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Text of the Press Release dated January 18, 2012 |
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99.2 |
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Information relating to Item 14 of the Registration Statement on Form S-3 (333-161721) |
Exhibit 1.1
$450,000,000
HCP, Inc.
(a Maryland corporation)
3.75% Senior Notes Due 2019
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
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Page |
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Section 1. |
Representations and Warranties |
3 |
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Section 2. |
Sale and Delivery to Underwriters; Closing |
11 |
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Section 3. |
Covenants of the Company |
12 |
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Section 4. |
Payment of Expenses |
15 |
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Section 5. |
Conditions of the Underwriters Obligations |
16 |
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Section 6. |
Indemnification |
21 |
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Section 7. |
Contribution |
23 |
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Section 8. |
Representations, Warranties and Agreements to Survive Delivery |
24 |
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Section 9. |
Termination |
24 |
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Section 10. |
Default by One or More of the Underwriters |
25 |
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Section 11. |
Certain Agreements of the Underwriters |
25 |
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Section 12. |
Notices |
26 |
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Section 13. |
Parties |
27 |
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Section 14. |
Governing Law and Time |
27 |
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Section 15. |
No Advisory or Fiduciary Relationship |
28 |
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Section 16. |
Other Provisions |
28 |
$450,000,000
HCP, INC.
(a Maryland corporation)
3.75% Senior Notes Due 2019
UNDERWRITING AGREEMENT
January 18, 2012
Citigroup Global Markets Inc.
RBS Securities Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Dear Sirs:
HCP, Inc., a Maryland corporation (the Company), confirms its agreement with each of the Underwriters named in Schedule A hereto (collectively, the Underwriters, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Citigroup Global Markets Inc., RBS Securities Inc. and UBS Securities LLC are acting as representatives (the Representatives), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective amounts set forth in such Schedule A of $450,000,000 aggregate principal amount of the Companys 3.75% Senior Notes Due 2019 (the Securities). The Securities are to be issued pursuant to an indenture dated September 1, 1993 (the Base Indenture) between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to The Bank of New York, as trustee (the Trustee), as supplemented by the First Supplemental Indenture to be entered into between the Company and the Trustee (the Supplemental Indenture and together with the Base Indenture, the Indenture). The term Indenture, as used herein, also includes the Officers Certificate (as defined in the Base Indenture) establishing the respective forms and terms of the Securities pursuant to Section 301 of the Indenture.
The Company has filed with the Securities and Exchange Commission (the Commission) an automatic shelf registration statement on Form S-3 (No. 333-161721), which registration statement became effective upon filing under Rule 462(e) of the rules and regulations of the Commission (the 1933 Act Regulations) under the Securities Act of 1933, as amended (the 1933 Act). Such registration statement covers the registration of the Securities (among others) under the 1933 Act. Such registration statement, in the form in which it became effective, as amended through the date hereof, including the information deemed pursuant to Rule 430B under the 1933 Act Regulations to be part of the registration statement at the time of its effectiveness (Rule 430B Information) and all documents incorporated or deemed to be incorporated by reference therein through the date hereof, is hereinafter referred to as the Registration Statement. The Company proposes to file with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations the Prospectus Supplement (as defined in Section 3(k) hereof) relating to the Securities and the prospectus dated September 4, 2009 (the Base Prospectus), and has previously advised you of all further information (financial and other) with respect to the Company set forth therein. The Base Prospectus together with the Prospectus Supplement, in their respective forms on the date hereof (being the forms in which they are to be filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations), including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, are hereinafter referred to as, collectively, the Prospectus, except that if any revised prospectus or prospectus supplement shall be provided to you by the Company for use in connection with the offering and sale of the Securities which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term Prospectus shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to you for such use. The term Pre-Pricing Prospectus, as used in this Agreement, means the preliminary prospectus supplement dated January 18, 2012 and filed with the Commission on January 18, 2012 pursuant to Rule 424(b) of the 1933 Act Regulations, together with the Base Prospectus used with such preliminary prospectus supplement in connection with the marketing of the Securities, in each case as amended or supplemented by the Company. Unless the context otherwise requires, all references in this Agreement to documents, financial statements and schedules and other information which is contained, included, stated, described in or referred to in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus (and all other references of like import) shall be deemed to mean and include all such documents, financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, the Pre-Pricing Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the 1934 Act), after the date of this Agreement which is or is deemed to be incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.
At or prior to the time when sales of the Securities were first made (such time, the Time of Sale), the Company had prepared the following information (collectively the Time of Sale Information): the Pre-Pricing Prospectus and each free-writing prospectus (as defined pursuant to Rule 405 of the 1933 Act Regulations) listed on Exhibit B hereto.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the date hereof (such date being hereinafter referred to as the Representation Date), as of the Time of Sale and as of Closing Time referred to in Section 2 as follows:
(i) Pre-Pricing Prospectus. No order preventing or suspending the use of the Pre-Pricing Prospectus has been issued by the Commission, and each Pre-Pricing Prospectus, at the time of filing thereof, complied in all material respects with the 1933 Act and 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; provided, however, that the representations and warranties in this subsection (i) shall not apply to statements in or omissions from the Pre-Pricing Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in any Pre-Pricing Prospectus.
(ii) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and at Closing Time will not, contain any 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 (ii) shall not apply to statements in or omissions from the Time of Sale Information made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in such Time of Sale Information. No statement of material fact included (or to be included) in the Prospectus will be omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus will be omitted therefrom.
(iii) Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 of the 1933 Act Regulations) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives other than the Underwriters in their capacity as such (other than a communication referred to in clauses (A), (B) and (C) below) an Issuer Free Writing Prospectus) other than (A) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 of the 1933 Act Regulations, (B) the Pre-Pricing Prospectus, (C) the Prospectus, (D) the documents listed on Exhibit B hereto as constituting part of the Time of Sale Information and (E) any electronic road show or other written
communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the 1933 Act, has been or will be (within the time period specified in Rule 433 of the 1933 Act Regulations) filed (to the extent required thereby) in accordance with the 1933 Act and when taken together with the Pre-Pricing Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and at Closing Time will not, contain any 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 (iii) shall not apply to statements in or omissions from any Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as described in Section 3(f), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Prospectus or any Pre-Pricing Prospectus that has not been superseded or modified.
(iv) Compliance with Registration Requirements. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the 1933 Act Regulations that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company. Each of the Registration Statement and the Base Prospectus, at the respective times the Registration Statement and any post-effective amendments thereto became effective and as of the Representation Date, complied and comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933 Act Regulations), and the Trust Indenture Act of 1939, as amended (the 1939 Act), and the rules and regulations of the Commission under the 1939 Act (the 1939 Act Regulations), and did not and as of the Representation Date and at Closing Time do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. No order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering of the Securities have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Prospectus, at the Representation Date (unless the term Prospectus refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the time it is first provided to the Underwriters for such use) and at Closing Time, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection (iv) shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus or the information contained in any Statement of Eligibility and Qualification of a trustee under the 1939 Act filed as an exhibit to the Registration Statement (a Form T-1). For purposes of this Section 1(a), all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system or its Interactive Data Electronic Applications system (collectively, EDGAR).
(v) Incorporated Documents. The documents filed by the Company and incorporated or deemed to be incorporated by reference into the Registration Statement, the Prospectus and the Time of Sale Information 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 Registration Statement, the Prospectus and the Time of Sale Information, at the respective times the Registration Statement and any amendments thereto became effective, at the Representation Date, the Time of Sale and at Closing Time, did not, do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vi) Independent Accountants. The accountants who audited the financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus is a registered public accounting firm independent of the Company, as required by the 1933 Act and the 1933 Act Regulations and the rules and regulations of the Public Company Accounting Oversight Board, in the case of the Company, or as required by Rule 101 of the Code of Professional Conduct of the AICPA, in the case of ManorCare.
(vii) 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, the Time of Sale Information and the Prospectus present fairly the consolidated financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their respective operations for the periods specified; and, except as otherwise stated in the Registration Statement, the Time of Sale Information 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 of the Company and its consolidated subsidiaries 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, if any, included or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus present fairly the information shown therein as of the dates indicated and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus; and the pro forma financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commissions 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 Companys ratios of earnings to fixed charges included in the Prospectus Supplement (as defined below) under the caption Ratio of Earnings to Fixed Charges and Preferred Stock Dividends and in the Base Prospectus under the caption Ratio of Earnings to Fixed Charges and Preferred Stock Dividends and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission as at the dates indicated therein. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(viii) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Information 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 Companys common stock, par value $1.00 per share (Common Stock) and preferred stock, par value $1.00 per share (Preferred Stock), there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(ix) Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and the Prospectus; the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the Company is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Company and its subsidiaries considered as one enterprise in such state.
(x) Good Standing of Subsidiaries. Each subsidiary of the Company which is a significant subsidiary (each, a Significant Subsidiary) as defined in Rule 405 of Regulation C of the 1933 Act Regulations has been duly organized and is validly existing as a corporation, limited liability company 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, limited liability company or partnership, as the case may be, to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and the Prospectus and is duly qualified as a foreign corporation, limited liability company 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 or limited liability company interests of each such subsidiary which is a partnership or limited liability company, as applicable, have been duly authorized (if applicable) and validly issued and are fully paid and non-assessable and (except for other partnership or limited liability company interests described in the Time of Sale Information and 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.
(xi) REIT Status. Commencing with its taxable year ending December 31, 1985, the Company has at all times operated in such manner as to qualify as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the Code), and any predecessor statute thereto, and intends to continue to operate in such manner.
(xii) Capitalization. The authorized capital stock of the Company is as set forth in the Time of Sale Information and in the Prospectus under Capitalization, and the shares of issued Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its charter or bylaws or other organizational documents, as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them or their properties may be bound or to which any of the property or assets of the Company or any of its subsidiaries
is subject and in which the violation or default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and 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.
(xiv) Absence of Proceedings. Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, 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, the Time of Sale Information or the Prospectus, or which might result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement or any transaction contemplated hereby; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in or incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus, 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.
(xv) Absence of Further Requirements. No authorization, approval, consent, order or decree of any court or governmental authority or agency is required for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the offering, issuance or sale of the Securities hereunder, except such as may be required under state securities laws.
(xvi) Authorization of Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery by you, will be a valid and legally binding agreement of the Company.
(xvii) Authorization of Indenture. The Indenture has been duly authorized, executed and delivered by the Company and is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors rights generally or by general equitable principles. The Indenture has been duly qualified under the 1939 Act.
(xviii) Authorization of the Securities. The Securities have been duly authorized and, at Closing Time, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor specified in this Agreement, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors rights generally or by general equitable principles, and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(xix) Description of the Securities. The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(xx) Seniority of the Securities. The Securities rank and will rank on a parity with all unsecured indebtedness (other than subordinated indebtedness) of the Company that is outstanding on the date hereof or that may be incurred hereafter, and senior to all subordinated indebtedness of the Company that is outstanding on the date hereof or that may be incurred hereafter.
(xxi) Title to Property. The Company and its subsidiaries have good title to all real property or interests in real property owned by it or any of them in each case free and clear of all liens, encumbrances and defects except such as are stated in or included in documents incorporated or deemed to be incorporated by reference in the Time of Sale Information or 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).
(xxii) Investment Company Act. The Company is not required to be registered, and, after giving effect to the offering contemplated hereby and the application of the proceeds thereof as described in the Pre-Pricing Prospectus and the Prospectus, will not be required to be registered, under the Investment Company Act of 1940, as amended (the 1940 Act).
(xxiii) Rating of the Securities. The Securities have the respective ratings set forth in the Issuer Free Writing Prospectus identified in Exhibit B hereto.
(xxiv) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(xxv) Disclosure Controls and Procedures. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the 1934 Act) that (i) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Companys Chief Executive Officer and its Chief Financial Officer by others within those entities, particularly during the periods in which the filings made by the Company with the Commission which it may make under Section 13(a), 13(c) or 15(d) of the 1934 Act are being prepared, (ii) have been evaluated for effectiveness as of the end of the Companys most recent fiscal year and (iii) are effective at a reasonable assurance level to perform the functions for which they were established.
(xxvi) Internal Control. The Company has established and maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) and 15d-15(f) under the 1934 Act) that (i) are designed to provide reasonable assurance that (A) the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and (B) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto; and (ii) have been evaluated by the management of the Company (including the Companys Chief Executive Officer and Chief Financial Officer) for effectiveness as of the end of the Companys most recent fiscal year. In addition, not later than the date of the filing with the Commission of the Companys most recent Annual Report on Form 10-K, each of the accountants and the audit committee of the board of directors of the Company had been advised of (x) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Companys ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Companys internal control over financial reporting. Since the date of the most recent evaluation of such controls and procedures, there have been no changes in the Companys internal control over financial reporting or in other factors that have materially affected or are reasonably likely to materially affect the Companys internal control over financial reporting.
(xxvii) Status Under the 1933 Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined in the 1933 Act, in each case at the times specified in the 1933 Act in connection with the offering the Securities.
(xxviii) HCR ManorCare Facilities Acquisition. To the knowledge of the Company, the representations and warranties contained in paragraph (vii) of this Section 1 are true and correct with respect to the financial statements and any supporting schedules of HCR Properties, LLC and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus; except where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to 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, and HCR Properties, LLC and its subsidiaries, considered as one enterprise.
(b) Any certificate signed by any officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to you as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 98.898% of the principal amount thereof, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the office of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10013 or at such other place as shall be agreed upon by you and the Company, at 7:00 a.m., California time, on January 23, 2012, or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called Closing Time). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. Certificates for the Securities shall be in such denominations and registered in such names as the Representatives may request in writing at least one business day before Closing Time. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Securities which such Underwriter has agreed to purchase. UBS Securities LLC, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose check has not been received by Closing Time, but such payment shall not release such Underwriter from its obligations hereunder. The certificates for the Securities will be made available for examination and packaging by the Representatives not later than 10:00 a.m. on the last business day prior to Closing Time in New York, New York.
Section 3. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company will notify the Representatives immediately, and confirm the notice in writing (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or amendment or supplement to the Prospectus or any Issuer Free Writing Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities (or required to be delivered but for Rule 172 of the 1933 Act Regulations) (the Prospectus Delivery Period), (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 order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Pre-Pricing Prospectus or the Prospectus, or the initiation of any proceedings for that purpose or pursuant to Section 8A of the 1933 Act, (vi) of the occurrence of any event at any time as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include 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 existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from qualification of the Securities under state securities or Blue Sky laws or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance by the Commission of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Pre-Pricing Prospectus or the Prospectus or suspending any such qualification or exemption of the Securities and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company will provide you with copies of the form of Prospectus and each Issuer Free Writing Prospectus, in such numbers as you may reasonably request, and file or transmit for filing with the Commission such Prospectus and each Issuer Free Writing Prospectus (including the pricing term sheet in the form approved by the Representatives and in substantially the form of Exhibit C hereto (the Term Sheet)) to
the extent required by Rule 433 of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the second business day immediately succeeding the date hereof. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations (without giving effect to the proviso therein) and in any event prior to Closing Time.
(b) Filing of Amendments. During the Prospectus Delivery Period, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities that differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Representatives with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus related to the Securities, whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus to which the Representatives reasonably object.
(d) Delivery of Registration Statements. The Company will deliver to the Representatives as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith) as the Representatives may reasonably request.
(e) Delivery of Prospectuses. The Company will furnish to each Underwriter, from time to time during the Prospectus Delivery Period, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) Continued Compliance with Securities Laws. If, at any time during the Prospectus Delivery Period, any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriters)
so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to you a reasonable number of copies of such amendment or supplement. If, in accordance with the preceding sentence, it shall be necessary to amend or supplement the Prospectus at any time subsequent to the expiration of nine months after the first date of the public offering of the Securities, the Underwriters shall bear the expense of preparing, filing and furnishing any such amendment or supplement. If at any time following issuance of an Issuer Free Writing Prospectus through Closing Time there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Prospectus, any Pre-Pricing Prospectus or the Time of Sale Information or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify you and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(g) Time of Sale Information. If at any time prior to Closing Time (A) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (B) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Representatives thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities shall have been so qualified, the Company will file such statements and reports as may be required by laws of such jurisdiction to continue such qualification in effect for as long as may be required for the distribution of the Securities.
(i) Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Companys fiscal quarter next following the effective date (as defined in said Rule 158) of the Registration Statement.
(j) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner to be specified in the Prospectus Supplement under Use of Proceeds.
(k) Preparation of Prospectus Supplement. Immediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (the Prospectus Supplement), containing the terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the 1933 Act Regulations copies of the Prospectus (including such Prospectus Supplement).
(l) Reporting Requirements. The Company, during the Prospectus Delivery Period, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(m) Lock-up Period. The Company, during the period beginning on the date hereof and continuing to and including Closing Time (the Lock-Up Period), will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities (other than (i) the Securities or (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Representatives.
(n) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 of the 1933 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, and the Time of Sale Information, the Pre-Pricing Prospectus and the Prospectus and any amendments or supplements thereto and any Canadian wrappers, (ii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (iii) any fees payable in connection with the rating of the Securities, (iv) the preparation, issuance and delivery of the certificates for the Securities to you, (v) the fees and disbursements of the Companys counsel and accountants, (vi) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(h) hereof, including filing fees and the reasonable fee and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a Blue Sky Survey, (vii) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement as originally filed and of each amendment thereto, the Pre-Pricing Prospectus, any Issuer Free Writing Prospectus and of the Prospectus and any amendments or supplements thereto, (viii) the printing and delivery to you of copies of the Blue Sky Survey, and (ix) any fees or expenses of a depositary in connection with holding the securities in book-entry form.
If this Agreement is cancelled or terminated by the Representatives in accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse you for all of your out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of the Underwriters Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time no order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission pursuant to Rule 401(g)(2) of the 1933 Act Regulations or pursuant to Section 8A of the 1933 Act. The Prospectus and each Issuer Free Writing Prospectus shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 of the 1933 Act Regulations) and prior to the Closing Time the Company shall have provided evidence satisfactory to the Representatives of such timely filing or transmittal.
(b) Opinions. At Closing Time the Representatives shall have received:
(1) The favorable opinions, dated as of Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Company, as set forth in Exhibit A hereto.
(2) The favorable opinion, dated as of Closing Time, of Ballard Spahr LLP, Maryland corporate counsel for the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland.
(ii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and the Prospectus.
(iii) The authorized capital stock of the Company is as set forth in the Base Prospectus under the caption Description of Capital Stock We May Offer.
(iv) The execution and delivery of the Indenture have been duly and validly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law (the MGCL). The Indenture has been duly executed and delivered by the Company.
(v) The issuance of the Securities pursuant to the Indenture, and the offer and sale of the Securities pursuant to this Agreement, have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the MGCL.
(vi) Texas HCP, Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. All of the issued and outstanding shares of capital stock of Texas HCP, Inc. have been duly authorized and validly issued, are fully paid and non assessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(vii) The execution and delivery of this Agreement has been duly and validly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the MGCL. This Agreement has been duly executed and delivered by the Company.
(viii) The issuance and sale of the Securities by the Company and the compliance by the Company with the provisions of this Agreement and the Indenture and the consummation of the transactions contemplated hereby and thereby, will not result in any violation of the provisions of the charter or bylaws of the Company.
(ix) No authorization, approval, consent, decree or order of any Maryland court or governmental authority or agency is required under the MGCL for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the sale of the Securities hereunder, except such as may have been obtained or rendered, as the case may be.
In rendering its opinion, Ballard Spahr LLP shall state that each of Sidley Austin LLP, in rendering its opinion pursuant to Section 5(b)(4), and Skadden, Arps, Slate, Meagher & Flom LLP, in rendering its opinions pursuant to Section 5(b)(1), may rely upon such opinion as to matters arising under the laws of the State of Maryland.
(3) Opinion of Company Counsel. The favorable opinion, dated as of Closing Time, of James W. Mercer, Executive Vice President, General Counsel and Corporate Secretary of the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of such counsels knowledge and information, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(ii) To the best of such counsels knowledge and information, each Significant Subsidiary of the Company is duly qualified as a foreign corporation, limited liability company or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(iii) To the best of such counsels knowledge and information, no material default exists in the due performance or observance by the Company or any of its subsidiaries of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement, the Time of Sale Information or the Prospectus or filed as an exhibit thereto or incorporated by reference therein which would have a material adverse effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(iv) To the best of such counsels knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement, the Time of Sale Information or the Prospectus or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(v) The authorized, issued and outstanding capital stock of the Company is as set forth in the Time of Sale Information and the Prospectus under Capitalization under the column Actual (except for subsequent issuances, if any, pursuant to reservations, agreements, dividend reinvestment plans or employee or director stock plans referred to in the Time of Sale Information and the Prospectus), and the shares of issued and outstanding Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable.
(vi) The issue and sale of the Securities and the compliance by the Company with the provisions of this Agreement, the Indenture and the Securities, and the consummation of the transactions contemplated therein,
will not, to the best of such counsels knowledge and information, result in any material violation of any order applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties.
(vii) To the best of such counsels knowledge and information, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Time of Sale Information or the Prospectus or otherwise incorporated by reference therein that are not so disclosed.
(4) The favorable opinion, dated as of Closing Time, of Sidley Austin LLP, counsel to the Underwriters, with respect to such matters as the Representatives may reasonably request. In rendering such opinion, Sidley Austin LLP may rely upon the opinion of Ballard Spahr LLP, rendered pursuant to Section 5(b)(2), as to matters arising under the laws of the State of Maryland.
(5) In giving its opinion required by subsection (b)(4) of this Section, Sidley Austin LLP shall additionally state that no facts have come to its attention that have caused it to believe that the Registration Statement, at the time of its effective date and at the date of the Prospectus Supplement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Time of Sale Information, at the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of the Prospectus Supplement or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel shall express no belief with respect to (i) the financial statements, schedules and other financial data included or incorporated by reference in or omitted from the Registration Statement, the Time of Sale Information or the Prospectus or (ii) any Form T-1.
In giving their opinions, Skadden, Arps, Slate, Meagher & Flom LLP, James W. Mercer, Ballard Spahr LLP and Sidley Austin LLP may rely, to the extent recited therein, (A) as to all matters of fact, upon certificates and written statements of officers of the Company, and (B) as to the qualification and good standing of the Company and each Significant Subsidiary to do business in any state or jurisdiction, upon certificates of appropriate government officials.
(c) Officers Certificate. At Closing Time there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus or the Time of Sale Information, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and you shall have received a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has performed or complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, (iv) no order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best knowledge and information of such officer, threatened by the Commission, (v) no examination pursuant to Section 8(c) of the 1933 Act concerning the Registration Statement has been initiated by the Commission, and (vi) the Company has not become the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. As used in this Section 5(c), the term Prospectus means the Prospectus in the form first used to confirm sales of the Securities.
(d) Accountants Comfort Letters. At the time of the execution of this Agreement, the Representatives shall have received letters from each of Ernst & Young LLP and Deloitte & Touche LLP with respect to the Company and a letter from Ernst & Young LLP with respect to HCR Properties, LLC, in each case dated such date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants comfort letters to underwriters with respect to financial statements and financial information included and incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus (including, without limitation, the pro forma financial statements) and each substantially in the same form as the draft letter previously delivered to and approved by the Representatives.
(e) Bring-down Comfort Letters. At Closing Time, the Representatives shall have received letters from each of Ernst & Young LLP and Deloitte & Touche LLP with respect to the Company and a letter from Ernst & Young LLP with respect to HCR Properties, LLC, in each case dated as of Closing Time, to the effect that they reaffirm the statements made in their respective letters furnished pursuant to subsection (d) of this Section, except that the specified date referred to therein shall be a date not more than three business days prior to Closing Time.
(f) Additional Documents. At Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(g) Maintenance of Ratings. The Company shall have delivered to the Representatives a letter, dated Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives, confirming that the Securities have the ratings set forth in the Issuer Free Writing Prospectus identified in Exhibit B hereto; and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the
Companys other securities by any nationally recognized securities rating agency, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act Regulations, and since the date of this Agreement, no such organization shall have publicly announced that it has placed the Securities or any of the Companys other securities on what is commonly termed a watch list for possible down-grading.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notifying the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect.
Section 6. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers and agents, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Pre-Pricing Prospectus or the Prospectus (or any amendment or supplement thereto), or any Issuer Free Writing Prospectus or any Time of Sale Information or any issuer information (as defined in Rule 433(h) under the 1933 Act) filed or required to be filed pursuant to Rule 433(a) under the 1933 Act, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus or any Pre-Pricing Prospectus (or any amendment or supplement thereto), or any Issuer Free Writing Prospectus or any Time of Sale Information, or made in reliance upon the Trustees Form T-1 filed as an exhibit to the Registration Statement.
(b) Indemnification of the Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus or any Pre-Pricing Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus or any Time of Sale Information in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(c) Actions Against Parties; Notification. Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) EDGAR. For purposes of this Section 6, all references to the Registration Statement, any Pre-Pricing Prospectus, Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement to any of the foregoing, shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR.
Section 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions that the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus Supplement, bear to the aggregate public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it were offered exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each agent of an Underwriter, and each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters.
Section 9. Termination.
(a) The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been since the date of this Agreement or since the respective dates as of which information is given in the Prospectus or the Time of Sale Information, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or other calamity or crisis or change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market the Securities or enforce contracts for the sale of the Securities, (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 or in the NASDAQ Global Market has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by the NASDAQ Global Market or by order of the Commission, the Financial Industry Regulatory Authority or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) if a banking moratorium has been declared by either federal, New York, Maryland or California authorities. As used in this Section 9(a), the term Prospectus means the Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the Defaulted Securities), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24 hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, either the Representatives, on the one hand, or the Company, on the other hand, shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term Underwriter includes any person substituted for an Underwriter under this Section 10.
Section 11. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the plan for use of, any free writing prospectus, as defined in Rule 405 of the 1933 Act Regulations other than (i) a free writing prospectus that, solely as a result of use by the
Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433 of the 1933 Act Regulations, (ii) any Issuer Free Writing Prospectus listed on Exhibit B or prepared pursuant to Section 1(a)(iii) or Section 3(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved in writing by the Company in advance of the use of such free writing prospectus. Notwithstanding the foregoing, the Underwriters may use a term sheet substantially in the form of Exhibit C hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the 1933 Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
Section 12. 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 telecopier, and any such notice shall be effective when received at the address specified below.
If to the Company:
HCP, Inc.
3760 Kilroy Airport Way, Suite 300
Long Beach, California 90806
Attention: James W. Mercer
Facsimile: (562) 733-5200
With a copy (which shall not constitute notice) to:
Joseph A. Coco, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile: (917) 777-3050
and
David J. Goldschmidt, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile: (917) 777-3574
If to the Underwriters, delivered via telecopier with a confirmation copy mailed to the addresses set forth below:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: General Counsel
Facsimile: (212) 816-7912
and
RBS Securities Inc.
600 Washington Blvd.
Stamford, Connecticut 06901
Attention: Debt Capital Markets Syndicate
Facsimile: (203) 873-4534
and
UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Facsimile: (203) 719-0495
With a copy (which shall not constitute notice) to:
Sharon R. Flanagan, Esq.
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, California 94104-1715
Facsimile: (415) 772-7400
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 12.
Section 13. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and the officers and directors referred to in Sections 6 and 7 hereof and their heirs and legal representatives any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and said officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 14. Governing Law and Time. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State. Unless stated otherwise, all specified times of day refer to New York City time.
Section 15. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, are arms-length commercial transactions between the Company, on the one hand, and the Underwriters, on the other hand, (ii) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its stockholders, creditors, employees or any other party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (v) no Underwriter has provided any legal, financial, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, financial, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 16. Other Provisions. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms.
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Very truly yours, | ||
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HCP, INC. | ||
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By: |
/s/ Timothy M. Schoen | |
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Name: |
Timothy M. Schoen |
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Title: |
Executive Vice President - Chief |
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Financial Officer |
[Signature Page to Underwriting Agreement]
CONFIRMED AND ACCEPTED, |
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as of the date first above written: |
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Citigroup Global Markets Inc. |
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By: |
/s/ Andrew M. Donaldson |
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Name: Andrew M. Donaldson |
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Title: Vice President |
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RBS Securities Inc. |
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By: |
/s/ John Bolger |
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Name: John Bolger |
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Title: Vice President |
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UBS Securities LLC |
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By: |
/s/ Christopher Forshner |
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Name: Christopher Forshner |
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Title: Managing Director |
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UBS Securities LLC |
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By: |
/s/ Mark Spadaccini |
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Name: Mark Spadaccini |
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Title: Director |
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UBS Securities LLC |
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For themselves and as Representatives of the other Underwriters named in Schedule A hereto. |
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[Signature Page to Underwriting Agreement]
SCHEDULE A
Name of Underwriter |
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Principal |
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Citigroup Global Markets Inc. |
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$ |
85,500,000 |
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RBS Securities Inc. |
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85,500,000 |
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UBS Securities LLC |
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85,500,000 |
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Credit Agricole Securities (USA) Inc. |
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22,500,000 |
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Credit Suisse Securities (USA) LLC |
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22,500,000 |
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Goldman, Sachs & Co. |
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22,500,000 |
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Morgan Stanley & Co. LLC |
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22,500,000 |
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Wells Fargo Securities, LLC |
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22,500,000 |
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BNY Mellon Capital Markets, LLC |
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13,500,000 |
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KeyBanc Capital Markets Inc. |
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13,500,000 |
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PNC Capital Markets LLC |
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13,500,000 |
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Scotia Capital (USA) Inc. |
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13,500,000 |
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SunTrust Robinson Humphrey, Inc. |
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13,500,000 |
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U.S. Bancorp Investments, Inc. |
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13,500,000 |
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Total |
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$ |
450,000,000 |
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EXHIBIT C
Issuer Free Writing Prospectus, dated January 18, 2012
Filed Pursuant to Rule 433 under the Securities Act of 1933
Supplementing the Preliminary Prospectus Supplement dated January 18, 2012
Registration Statement No. 333-161721
Final Terms and Conditions
Issuer: |
HCP, Inc. |
Title of Securities: |
3.75% Senior Notes due 2019 |
Size: |
$450,000,000 |
Maturity: |
February 1, 2019 |
Coupon: |
3.75% per year accruing from January 23, 2012 |
Price to Public: |
99.523%, plus accrued interest, if any |
Yield to Maturity: |
3.828% |
Spread to Benchmark Treasury: |
+ 250 basis points |
Benchmark Treasury: |
1.375% due December 31, 2018 |
Benchmark Treasury Yield: |
1.328% |
Interest Payment Dates: |
February 1 and August 1, commencing August 1, 2012 |
Make-whole call: |
+ 37.5 basis points; however, at par during 90 days preceding maturity |
Joint Book-Running Managers: |
Citigroup Global Markets Inc. RBS Securities Inc. UBS Securities LLC |
Senior Co-Managers: |
Credit Agricole Securities (USA) Inc. Credit Suisse Securities (USA) LLC Goldman, Sachs & Co. Morgan Stanley & Co. LLC Wells Fargo Securities, LLC |
Co-Managers: |
BNY Mellon Capital Markets, LLC KeyBanc Capital Markets Inc. PNC Capital Markets LLC Scotia Capital (USA) Inc. SunTrust Robinson Humphrey, Inc. U.S. Bancorp Investments, Inc. |
Settlement Date: |
January 23, 2012 (T+3) |
CUSIP / ISIN: |
40414LAF6 / US40414LAF67 |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SECs website at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll-free at 1-800-831-9146 or RBS Securities Inc. toll-free at 1-866-884-2071 or UBS Securities LLC toll-free at 1-877-827-6444, extension 561-3884.
Exhibit 4.1
No. A-1
CUSIP NO. 40414LAF6 ISIN NO. US40414LAF67 |
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PRINCIPAL AMOUNT |
$450,000,000
HCP, INC.
3.75% SENIOR NOTES DUE 2019
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND, UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE FORM AS AFORESAID, MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ITS NOMINEE TO A SUCCESSOR DEPOSITARY OR ITS NOMINEE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
HCP, INC., a Maryland corporation (the Company, which term shall include any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of Four Hundred Fifty Million Dollars ($450,000,000) on February 1, 2019, and to pay interest thereon from January 23, 2012 or from the most recent interest payment date on which interest has been paid or duly provided for, semi-annually in arrears on February 1 and August 1 (each, an Interest Payment Date) of each year (or if such date is not a Business Day, on the next Business Day thereafter; no interest will accrue on such payment for the period from and after such Interest Payment Date to the date of such payment on the next succeeding Business Day), commencing August 1, 2012, at the rate of 3.75% per annum, until the entire principal amount hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in the Indenture, be paid to the Holder in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the date that is 15 calendar days prior to such Interest Payment Date, whether or not a Business Day. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and may either be paid to the Holder in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Payments of principal, premium, if any, and interest in respect of this Note will be made by the Company in immediately available funds.
Payment of the principal of and interest on this Note shall be payable at the Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., located at 101 Barclay Street, Floor 8 W, New York, New York 10286 or at such other office or agency of the Company maintained for that purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest may be paid by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or by transfer to an account maintained by the payee with a bank located in the United States; and, provided, further, that so long as this Note is registered in the name of DTC or its nominee, principal and interest payments will be paid to DTC or its nominee, as the Holder, by wire transfer in same-day funds.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed this 23rd day of January, 2012.
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HCP, Inc., | |
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a Maryland corporation | |
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By: |
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Name: |
Timothy M. Schoen |
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Title: |
Executive Vice President - Chief Financial Officer |
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James W. Mercer |
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Title: |
Executive Vice President, General Counsel and Corporate Secretary |
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TRUSTEES CERTIFICATE OF AUTHENTICATION: |
This is one of the Notes of the series designated herein referred to in the within-mentioned Indenture.
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The Bank of New York Mellon Trust Company, N.A., as Trustee | |
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By: |
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Authorized Signatory |
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Dated: January 23, 2012 |
This Note is one of a duly authorized issue of securities (herein called the Notes) of HCP, Inc., a Maryland Corporation, and any of its successors and assigns (the Company), issued as a series of securities under an indenture dated as of September 1, 1993 (the Base Indenture) as supplemented by the First Supplemental Indenture, dated as of January 24, 2011 (the Supplemental Indenture and together with the Base Indenture, the Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (the Trustee, which term includes any successor trustee under the Indenture with respect to the Notes), reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of a duly authorized series of Securities of the Company designated as the 3.75% Senior Notes due 2019, originally limited (subject to exceptions provided in the Indenture) in aggregate principal amount to $450,000,000; however, from time to time, without giving notice or seeking consent of the Holders of the Notes, the Company may issue additional Notes of this series having the same ranking, interest rate and maturity and other terms as this Note. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Notes are not subject to any sinking fund.
The Notes may be redeemed, in whole or in part, at any time at the option of the Company at a Redemption Price equal to the greater of: (1) 100% of the principal amount of the Notes to be redeemed, or (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable treasury rate (as defined below) plus 37.5 basis points, plus accrued and unpaid interest on the amount being redeemed to the Redemption Date;
provided, however, that if the Company redeems the Notes 90 days or fewer prior to February 1, 2019, the Redemption Price will equal 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest on the amount being redeemed to the Redemption Date.
Treasury rate means, with respect to any Redemption Date:
· the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the comparable treasury issue (if no maturity is within three months before or after the remaining life (as defined below), yields for the two published maturities most closely corresponding to the comparable treasury issue will be determined and the treasury rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
· if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the comparable treasury issue, calculated using a price for the comparable treasury issue (expressed as a percentage of its principal amount) equal to the comparable treasury price for such Redemption Date.
The treasury rate will be calculated by the Independent Investment Banker on the third Business Day preceding the date fixed for redemption.
Comparable treasury issue means the U.S. Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (remaining life) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
Comparable treasury price means (1) the average of three Reference Treasury Dealer quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company to act as the Independent Investment Banker.
Reference Treasury Dealers means each of Citigroup Global Markets Inc, RBS Securities Inc. and UBS Securities LLC and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in the United States (a Primary Treasury Dealer), the Company shall substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the comparable treasury issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
The Company may redeem the Notes in increments of $1,000. If the Company redeems less than all of the Notes, the Trustee will select the Notes to be redeemed using a method it considers fair and appropriate. The Company will cause notices of redemption to be mailed by first-class mail at least 30 but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address.
If this Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount thereof to be redeemed. The Company will issue a Note in principal amount equal to the unredeemed portion of this Note in the name of the Holder hereof upon cancellation of the original Note. Any Notes called for redemption will become due on the Redemption Date. On or after the Redemption Date, interest will cease to accrue on the Notes or portions of them called for redemption.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 25% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of the Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the aggregate principal amount of the Outstanding Notes to waive, in certain circumstances, on behalf of all Holders of the Notes, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and interest on, this Note at the times, places and rate, and in the coin or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Security Register upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for the purpose in any place where the principal of and interest on this Note are payable, duly endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more new Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
This Note may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling or unable to continue as depositary for the Notes or if at any time DTC ceases to be a clearing agency registered under the Exchange Act, if so required by applicable law or regulation, the Company shall appoint a successor depositary with respect to the Notes. If (a) a successor depositary for the Notes is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness, inability or ineligibility, (b) an Event of Default has occurred and is continuing and the beneficial owners representing a majority in principal amount of the Notes advise DTC to cease acting as depositary for such Notes, or (c) the Company, in its sole discretion, determines at any time that all Notes (but not less than all) of this series shall no longer be represented by such Global Note or Notes, then the Company shall execute, and the Trustee shall authenticate and deliver, definitive Notes of like series, rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Note or Notes.
The Notes are issuable only in registered form without coupons and may be sold in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series in authorized denominations as requested by the Holders surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of the Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Indenture shall cease to be of further effect with respect to the Notes (subject to the survival of certain provisions thereof), (ii) the Company may be discharged from its obligations with respect to the Notes (subject to certain exceptions), or (iii) the Company may be released from its obligations under specified covenants and agreements in the Indenture, in each case if the Company satisfies certain conditions provided in the Indenture.
No recourse shall be had for the payment of the principal of or interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any past, present or future stockholder, employee, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
THE INDENTURE AND THE NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF CALIFORNIA, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the correctness or accuracy of such CUSIP numbers as printed on the Notes, and reliance may be placed only on the other identification numbers printed hereon.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
FOR VALUE RECEIVED, THE UNDERSIGNED HEREBY
SELLS, ASSIGNS AND TRANSFERS TO
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
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(Please Print or Typewrite Name and Address
including Zip Code of Assignee)
the within Note of and hereby does irrevocably constitute and appoint
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Attorney to transfer said Note on the books of the within-named Company with full power of substitution in the premises.
Dated: |
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NOTICE: The signature to this assignment must correspond with the name as it appears on the first page of the within Note in every particular, without alteration or enlargement or any change whatever.
Exhibit 5.1
January 23, 2012
HCP, Inc.
3760 Kilroy Airport Way
Suite 300
Long Beach, California 90806
Re: HCP, Inc., a Maryland corporation (the Company) - Sale of $450,000,000 aggregate principal amount of 3.75% Senior Notes Due 2019 (the Notes) pursuant to a Registration Statement on Form S-3 (Registration No. 333-161721) (the Registration Statement)
Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with the registration of the Notes under the Securities Act of 1933, as amended (the Act), under the Registration Statement, which was filed with the Securities and Exchange Commission (the Commission) on or about September 4, 2009. You have requested our opinion with respect to the matters set forth below.
In our capacity as Maryland corporate counsel to the Company and for the purposes of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the Documents):
1. the corporate charter of the Company (the Charter), consisting of Articles of Restatement filed with the State Department of Assessments and Taxation of Maryland (the Department) on September 10, 2007;
2. the Third Amended and Restated Bylaws of the Company, dated as of July 22, 2004, and the Fourth Amended and Restated Bylaws of the Company, dated as of September 20, 2006, as amended by Amendment No. 1 to the Fourth Amended and Restated Bylaws of the Company, dated as of October 25, 2007, Amendment No. 2 to the Fourth Amended and Restated Bylaws of the Company, dated as of October 29, 2009, and Amendment No. 3 to the Fourth Amended and Restated Bylaws of the Company, dated as of March 7, 2011 (collectively, the Bylaws);
3. the Minutes of the Organizational Action of the Board of Directors of the Company, dated March 21, 1985 (the Organizational Minutes);
Atlanta | Baltimore | Bethesda | Denver | Las Vegas | Los Angeles | New Jersey | Philadelphia | Phoenix | Salt Lake City | San Diego | Washington, DC | Wilmington
4. resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, on July 22, 1993, February 3, 2006, October 25, 2007, July 29, 2009, January 16, 2012 and January 18, 2012, which, among other things, authorized the issuance of the Notes (collectively, the Directors Resolutions);
5. the Indenture, dated as of September 1, 1993 (the Base Indenture), as supplemented by the First Supplemental Indenture, dated as of January 24, 2011 (the Supplemental Indenture and together with the Base Indenture, collectively, the Indenture), by and between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York;
6. a certificate of Timothy M. Schoen, the Executive Vice President Chief Financial Officer of the Company, and James W. Mercer, the Executive Vice President, General Counsel and Corporate Secretary of the Company, dated as of January 23, 2012 (the Officers Certificate), to the effect that, among other things, the copies of the Charter, the Bylaws, the Organizational Minutes, the Directors Resolutions and the Indenture are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers Certificate;
7. the form of an Officers Certificate with respect to the Notes, pursuant to Sections 201 and 301 of the Indenture (the Sections 201 and 301 Certificate) to be executed and delivered by Authorized Officers of the Company (as defined in the January 18, 2012 Directors Resolutions), which, among other things, establish the terms and provisions of the Notes pursuant to the authorizing resolutions set forth in the Directors Resolutions and to which are attached the form of the Notes;
8. the Registration Statement and the related base prospectus and prospectus supplement included therein, in substantially the form filed or to be filed with the Commission pursuant to the Act;
9. a status certificate of the Department, dated January 19, 2012, to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland; and
10. such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary to render this opinion, subject to the limitations, assumptions and qualifications noted below.
In reaching the opinions set forth below, we have assumed the following:
(a) each person executing any instrument, document or agreement on behalf of any party (other than the Company) is duly authorized to do so;
(b) each natural person executing any instrument, document or agreement is legally competent to do so;
(c) all Documents submitted to us as originals are authentic; the form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; all Documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; all representations, warranties, statements and information contained in the Documents are true and complete; there has been no modification of, or amendment to, any of the Documents, and there has been no waiver of any provision of any of the Documents by action or omission of the parties or otherwise;
(d) all certificates submitted to us, including but not limited to the Officers Certificate, are true, correct and complete both when made and as of the date hereof;
(e) prior to the issuance of the Notes, the Sections 201 and 301 Certificate will be duly executed and delivered to the Trustee (as defined in the Indenture) by Authorized Officers of the Company in accordance with the Indenture; and
(f) the Indenture will remain in full force and effect for so long as the Notes are outstanding.
Based on the foregoing, and subject to the assumptions and qualifications set forth herein, it is our opinion that, as of the date of this letter:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland.
(ii) The Company has the corporate power to create the obligation evidenced by the Notes.
(iii) The Notes have been duly authorized for issuance by the Company.
The foregoing opinion is limited to the substantive laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
This opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after the date hereof.
We consent to the incorporation by reference of this opinion in the Registration Statement and further consent to the filing of this opinion as an exhibit to the applications to securities commissioners for the various states of the United States for registration of the Notes. We also consent to the identification of our firm as Maryland counsel to the Company in the section of the Registration Statement entitled Validity of the Notes. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Ballard Spahr LLP
Exhibit 5.2
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January 23, 2012 |
HCP, Inc.
3760 Kilroy Airport Way, Suite 300
Long Beach, CA 90806
Re: HCP, Inc.
3.75% Senior Notes due 2019
Ladies and Gentlemen:
We have acted as special counsel to HCP, Inc., a Maryland corporation (the Company), in connection with the public offering by the Company of $450,000,000 aggregate principal amount of the Companys 3.75% Senior Notes due 2019 (the Securities) issuable pursuant to an Indenture, dated as of September 1, 1993 (the Base Indenture), as supplemented by the First Supplemental Indenture, dated as of January 24, 2011 (the Supplemental Indenture, and together with the Base Indenture, the Indenture) by and between the Company and The Bank of New York Mellon Trust Company N.A., as successor trustee to The Bank of New York (the Trustee). The Company entered into an underwriting agreement, dated as of January 18, 2012 (the Underwriting Agreement) with Citigroup Global Markets Inc., RBS Securities Inc. and UBS Securities LLC, as representatives of the several underwriters named therein (the Underwriters), relating to the sale of the Securities by the Company to the Underwriters.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the Securities Act).
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the registration statement on Form S-3 (File No. 333-161721) of the Company relating to the Securities and other securities of the Company filed on September 4, 2009 with the Securities and Exchange Commission (the Commission) under the Securities Act, allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the Rules and Regulations), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement, being hereinafter referred to as the Registration Statement);
(ii) an executed copy of the Base Indenture;
(iii) an executed copy of the Supplemental Indenture;
(iv) the certificate evidencing the Securities (the Note Certificate);
(v) an executed copy of the Underwriting Agreement; and
(vi) the certificate of James W. Mercer, Executive Vice President, General Counsel of the Company, and Timothy M. Schoen, Executive Vice President - Chief Financial Officer of the Company, dated the date hereof, relating to the Securities pursuant to Sections 201 and 301 of the Indenture.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. We have also assumed that the Company has complied and will comply with all aspects of the laws of all relevant jurisdictions (including the laws of the State of Maryland) in connection with the transactions contemplated by the Indenture and the Registration Statement. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.
The opinion set forth below is subject to the following further qualifications, assumptions and limitations:
(a) the Company has the corporate power and authority to execute, deliver and perform all its obligations under each of the Underwriting Agreement, the Indenture and the Note Certificate;
(b) each of the Underwriting Agreement, the Indenture and the Note Certificate has been duly authorized by all requisite corporate action on the part of the Company and duly executed and delivered by the Company under the laws of the State of Maryland;
(c) we do not express any opinion as to the effect of the opinion expressed herein of (i) the compliance or noncompliance of any party to the Indenture, the Underwriting Agreement and the Securities (other than with respect to the Company to the extent necessary to render the opinion set forth herein) with any state, federal or other laws or regulations applicable to it or them or (ii) the legal or regulatory status or the nature of the business of any such party (other than with respect to the Company to the extent necessary to render the opinion set forth herein);
(d) the execution and delivery by the Company of, and the performance of its obligations under, the Securities and the Indenture will not violate, conflict with or constitute a default under (i) any agreement or instrument to which the Company or any of its properties is subject; (ii) any law, rule or regulation to which the Company or any of its properties is subject; (iii) any judicial or regulatory order or decree of any governmental authority; or (iv) any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority;
(e) the validity or enforcement of any agreements or instruments may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
(f) we do not express any opinion as to the applicability or effect of any fraudulent transfer, preference or similar law on the Securities or any transactions contemplated thereby;
(g) we do not express any opinion as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation);
(h) we do not express any opinion as to the enforceability in certain circumstances under California law of provisions in the Indenture or the Securities that impose penalties, forfeitures, late payment charges, interest-on-interest or an increase in interest rate upon delinquent payment or the occurrence of a default;
(i) to the extent any opinion relates to the enforceability of the choice of California law and choice of California forum provisions of the Indenture or the Securities, our opinion is rendered in reliance upon Section 1646.5 of the California Civil Code and Section 410.40 of the California Code of Civil Procedure and is subject to the qualification that such enforceability may be limited by public policy considerations of any jurisdiction;
(j) we note that we have assumed that each party to the Indenture, the Note Certificate or the Underwriting Agreement will enforce its rights in a commercially reasonable manner;
(k) we do not express any opinion with respect to the effect of California Civil Code Section 711 on any provisions that could be a restraint on alienation of property; and
(l) we have assumed that the Indenture, the Note Certificate and the Underwriting Agreement accurately reflect the intention of the parties.
Our opinion set forth herein is limited to those laws of the State of California and the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as Opined on Law). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such law (other than Opined on Law) on the opinion herein stated. Insofar as the opinion expressed herein relates to matters governed by laws other than Opined on Law, we have assumed, without having made any independent investigation, that such laws do not affect the opinion set forth herein. The opinion expressed herein is based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
When duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Securities will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their respective terms.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Companys Current Report on Form 8-K, being filed on the date hereof, and incorporated by reference into the Registration Statement. We hereby consent to the reference to our firm under the caption Validity of the Notes in the prospectus supplement dated January 18, 2012 and filed with the Commission. In giving this consent, we do not thereby admit that we are
Exhibit 8.1
January 23, 2012
HCP, Inc.
3760 Kilroy Airport Way, Suite 300
Long Beach, CA 90806
Re: Certain United States Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as United States Federal income tax counsel to HCP, Inc., a Maryland corporation (HCP), in connection with the Underwriting Agreement, dated January 18, 2012 (the Underwriting Agreement), between the representatives of the several underwriters named therein (the Underwriters) and you, relating to the sale by you to the Underwriters of $450,000,000 aggregate principal amount of HCPs 3.75% Senior Notes due 2019 (the Securities) to be issued under the Indenture, dated as of September 1, 1993 (the Base Indenture), as supplemented by the First Supplemental Indenture, dated as of January 24, 2011 (the Supplemental Indenture, and together with the Base Indenture, the Indenture), each between HCP and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York. We have acted as tax counsel to HCP in connection with, and have participated in the preparation of, the Preliminary Prospectus and the Prospectus Supplement (each as defined herein). Capitalized terms used herein but not defined shall have the meanings set forth in the Underwriting Agreement.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following:
(i) |
the registration statement on Form S-3 (File No. 333-161721) of HCP relating to the Securities and other securities of HCP filed on September 4, 2009 with the Securities and Exchange Commission under the Securities Act of 1933 (the 1933 Act) allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the 1933 Act (the |
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Rules and Regulations), including certain documents filed by HCP pursuant to the Securities Exchange Act of 1934 and incorporated by reference into the Prospectus or the Preliminary Prospectus (each as defined below), as the case may be, as of the date hereof or as of 3:15 p.m. (Eastern time) on January 18, 2012, respectively (collectively, the Incorporated Documents) and information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement, being hereinafter referred to as the Registration Statement); |
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the prospectus, dated September 4, 2009 (the Base Prospectus), which forms a part of and is included in the Registration Statement; |
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the preliminary prospectus supplement, dated January 18, 2012 (together with the Base Prospectus and the Incorporated Documents, the Preliminary Prospectus); |
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(iv) |
the prospectus supplement, dated January 18, 2012 (the Prospectus Supplement and, together with the Base Prospectus and the Incorporated Documents, the Prospectus), relating to the offering of the Securities, in the form filed by HCP pursuant to Rule 424(b) of the Rules and Regulations; |
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(v) |
an executed copy of the Underwriting Agreement; |
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(vi) |
an executed copy of the Indenture; |
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the pricing term sheet, dated January 18, 2012, relating to the offering of the Securities (such pricing term sheet, together with the Registration Statement, the Preliminary Prospectus, the Prospectus Supplement, the Prospectus, the Underwriting Agreement and the Indenture, the Offering Documents); and |
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(viii) |
such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein. |
In addition, you have provided us with, and we are relying upon, a certificate containing certain factual statements, factual representations and covenants of officers of HCP (the Officers Certificate) relating to, among other
things, the actual and proposed operations of HCP and the entities in which it holds, or has held, a direct or indirect interest (collectively, the Company). These representations and covenants relate, in some cases, to transactions and investments for which we did not act as the Companys primary counsel. For purposes of our opinion, we have not independently verified all of the facts, statements, representations and covenants set forth in the Officers Certificate, the Offering Documents or in any other document. In particular, we note that the Company may engage in transactions in which we have not provided legal advice, and have not reviewed, and of which we may be unaware. We have, consequently, assumed and relied on your representation that the statements, representations and covenants contained in the Officers Certificate, the Offering Documents and other documents, or otherwise furnished to us, accurately and completely describe all material facts relevant to our opinion. We have assumed that such facts, statements, representations and covenants are true without regard to any qualification as to knowledge, belief, intent or materiality. Our opinion is conditioned on the continuing accuracy and completeness of such facts, statements, representations and covenants. We are not aware of any facts inconsistent with such statements, representations and covenants. We have, at the Companys request, also assumed for purposes of our opinion that any legal opinion received by the Company on or before November 8, 2010, to the effect that the Company was taxable as a real estate investment trust (a REIT) under Section 856 of the Internal Revenue Code of 1986, as amended (the Code), is correct. Any material change or inaccuracy in the facts referred to, set forth or assumed herein or in the Officers Certificate, including the correctness of any such prior legal opinion, may affect our conclusions set forth herein.
In our review of certain documents in connection with our opinion as expressed below, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or electronic copies, and the authenticity of the originals of such copies. Where documents have been provided to us in draft form, we have assumed that the final executed versions of such documents will not differ materially from such drafts.
Our opinion is also based on the correctness of the following assumptions: (i) HCP and each of the entities comprising the Company has been and will continue to be operated in accordance with the laws of the jurisdiction in which it was formed and in the manner described in the relevant organizational documents, (ii) there will be no changes in the applicable laws of the State of Maryland or of any other jurisdiction under the laws of which any of the entities comprising the Company have been formed and (iii) each of the written agreements to which the Company is a party has been and will be implemented, construed and enforced in accordance with its terms.
In rendering our opinion, we have considered and relied upon the Code, the regulations promulgated thereunder (Regulations), administrative rulings and other Treasury interpretations of the Code and the Regulations by the courts and the Internal Revenue Service (IRS), all as they exist at the date hereof. It should be noted that the Code, Regulations, judicial decisions and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions set forth herein. In this regard, an opinion of counsel with respect to an issue represents counsels best judgment as to the outcome on the merits with respect to such issue, is not binding on the IRS or the courts and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position if asserted by the IRS.
We express no opinion as to the laws of any jurisdiction other than the federal laws of the United States. We express no opinion on any issue relating to HCP or any investment therein, other than as expressly stated herein.
Based on and subject to the foregoing, we are of the opinion that, commencing with HCPs taxable year that ended on December 31, 1985, HCP has been organized and operated in conformity with the requirements for qualification as a REIT under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will continue to enable, it to meet the requirements for qualification and taxation as a REIT under the Code thereafter. As noted in the Offering Documents, HCPs qualification and taxation as a REIT depend upon its ability to meet, through actual operating results, certain requirements relating to the sources of its income, the nature of its assets, distribution levels and diversity of stock ownership, and various other qualification tests imposed under the Code, the results of which are not reviewed by us. Accordingly, no assurance can be given that the actual results of HCPs operation for any one taxable year will satisfy the requirements for taxation as a REIT under the Code.
We consent to the filing of this opinion as an exhibit to the Form 8-K, filed with the Commission on January 23, 2012 and to the reference to Skadden, Arps, Slate, Meagher & Flom LLP under the caption Supplemental Material United States Federal Income Tax Considerations in the Preliminary Prospectus and the Prospectus Supplement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission.
This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant or assumption relied upon herein that becomes incorrect or untrue.
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Very truly yours, |
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|
|
/s/ Skadden, Arps, Slate, Meagher & Flom LLP |
Exhibit 12.1
HCP, Inc.
RATIO OF EARNINGS TO FIXED CHARGES
and RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
|
|
Nine Months Ended |
|
Year ended December 31, |
| ||||||||||||||
|
|
September 30, 2011 |
|
2010 |
|
2009 |
|
2008 |
|
2007 |
|
2006 |
| ||||||
|
|
(In thousands, except ratios) |
| ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
RATIO OF EARNINGS TO FIXED CHARGES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Fixed Charges: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Interest Expense and Debt Amortization: |
|
$ |
317,903 |
|
$ |
288,657 |
|
$ |
298,898 |
|
$ |
349,313 |
|
$ |
358,834 |
|
$ |
213,331 |
|
Rental Expense |
|
4,686 |
|
5,939 |
|
6,039 |
|
6,008 |
|
8,151 |
|
4,212 |
| ||||||
Capitalized Interest |
|
19,395 |
|
21,664 |
|
25,917 |
|
27,490 |
|
12,346 |
|
895 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Fixed Charges |
|
$ |
341,984 |
|
$ |
316,260 |
|
$ |
330,854 |
|
$ |
382,811 |
|
$ |
379,331 |
|
$ |
218,438 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Pretax Income from Continuing Operations before Minority Interest and Income from Equity Investees |
|
$ |
451,199 |
|
$ |
388,927 |
|
$ |
99,581 |
|
$ |
225,404 |
|
$ |
124,799 |
|
$ |
33,208 |
|
Add Back Fixed Charges |
|
341,984 |
|
316,260 |
|
330,854 |
|
382,811 |
|
379,331 |
|
218,438 |
| ||||||
Add Distributed Income from Equity Investees |
|
2,462 |
|
5,373 |
|
7,273 |
|
6,745 |
|
5,264 |
|
8,331 |
| ||||||
Less Capitalized Interest |
|
(19,395 |
) |
(21,664 |
) |
(25,917 |
) |
(27,490 |
) |
(12,346 |
) |
(895 |
) | ||||||
Less Minority Interest from Subsidiaries without Fixed Charges |
|
(9,529 |
) |
(15,517 |
) |
(13,049 |
) |
(17,996 |
) |
(20,110 |
) |
(19,895 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Total |
|
$ |
766,721 |
|
$ |
673,379 |
|
$ |
398,742 |
|
$ |
569,474 |
|
$ |
476,938 |
|
$ |
239,187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Ratio of Earnings to Fixed Charges |
|
2.24 |
|
2.13 |
|
1.21 |
|
1.49 |
|
1.26 |
|
1.09 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Fixed Charges: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Interest Expense and Debt Amortization: |
|
$ |
317,903 |
|
$ |
288,657 |
|
$ |
298,898 |
|
$ |
349,313 |
|
$ |
358,834 |
|
$ |
213,331 |
|
Preferred Stock Dividend |
|
15,848 |
|
21,130 |
|
21,130 |
|
21,130 |
|
21,130 |
|
21,130 |
| ||||||
Rental Expense |
|
4,686 |
|
5,939 |
|
6,039 |
|
6,008 |
|
8,151 |
|
4,212 |
| ||||||
Capitalized Interest |
|
19,395 |
|
21,664 |
|
25,917 |
|
27,490 |
|
12,346 |
|
895 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Fixed Charges |
|
$ |
357,832 |
|
$ |
337,390 |
|
$ |
351,984 |
|
$ |
403,941 |
|
$ |
400,461 |
|
$ |
239,568 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Earnings (see above) |
|
$ |
766,721 |
|
$ |
673,379 |
|
$ |
398,742 |
|
$ |
569,474 |
|
$ |
476,938 |
|
$ |
239,187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
Ratio of Earnings to Fixed Charges |
|
2.14 |
|
2.00 |
|
1.13 |
|
1.41 |
|
1.19 |
|
|
(1) |
(1) For the Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends for Year Ended December 31, 2006, fixed charges exceeded earnings resulting in a deficiency of $381,000.
Exhibit 12.2
HCP, Inc.
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES AND PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS(1)
|
|
Nine Months Ended |
|
Year Ended |
| ||
|
|
September 30, 2011 |
|
December 31, 2010 |
| ||
|
|
(In thousands, except ratios) |
| ||||
|
|
|
|
|
| ||
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES |
|
|
|
|
| ||
|
|
|
|
|
| ||
Fixed Charges: |
|
|
|
|
| ||
Interest Expense and Debt Amortization |
|
$ |
325,825 |
|
$ |
401,206 |
|
Rental Expense |
|
4,735 |
|
6,122 |
| ||
Capitalized Interest |
|
19,395 |
|
21,664 |
| ||
|
|
|
|
|
| ||
Fixed Charges |
|
$ |
349,955 |
|
$ |
428,992 |
|
|
|
|
|
|
| ||
Earnings: |
|
|
|
|
| ||
Pretax Income (Loss) from Continuing Operations before minority Interest and Income from Equity investees |
|
$ |
538,487 |
|
$ |
726,881 |
|
Add Back Fixed Charges |
|
349,955 |
|
428,992 |
| ||
Add Distributed Income from Equity Investees |
|
2,462 |
|
5,373 |
| ||
Less Capitalized Interest |
|
(19,395 |
) |
(21,664 |
) | ||
Less Minority Interest from Subsidiaries without fixed charges |
|
(9,529 |
) |
(15,517 |
) | ||
|
|
|
|
|
| ||
Total |
|
$ |
861,980 |
|
$ |
1,124,065 |
|
|
|
|
|
|
| ||
Ratio of Earnings to Fixed Charges |
|
2.46 |
|
2.62 |
| ||
|
|
|
|
|
| ||
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS |
|
|
|
|
| ||
|
|
|
|
|
| ||
Fixed Charges: |
|
|
|
|
| ||
Interest Expense and Debt Amortization |
|
$ |
325,825 |
|
$ |
401,206 |
|
Preferred Stock Dividend |
|
15,848 |
|
21,130 |
| ||
Rental Expense |
|
4,735 |
|
6,122 |
| ||
Capitalized Interest |
|
19,395 |
|
21,664 |
| ||
|
|
|
|
|
| ||
Fixed Charges |
|
$ |
365,803 |
|
$ |
450,122 |
|
|
|
|
|
|
| ||
Earnings (see above) |
|
$ |
861,980 |
|
$ |
1,124,065 |
|
|
|
|
|
|
| ||
Ratio of Earnings to Fixed Charges |
|
2.36 |
|
2.50 |
|
(1) The unaudited pro forma condensed consolidated statement of income data used in the pro forma calculations was prepared under the purchase method of accounting as if the acquisition of HCR Properties, LLC and the approximate 10% ownership interest in the operations of HCR ManorCare, Inc. had been completed (a) on January 1, 2010 for the Year Ended December 31, 2010 pro forma ratios, and (b) on January 1, 2011 for the Nine Months Ended September 30, 2011 pro forma ratios. We have included this information only for purposes of illustration, and it does not necessarily indicate what the ratios would have been if the acquisitions had actually been completed on those dates. Moreover, this information does not necessarily indicate what the future ratios of earnings to fixed charges will be.
Exhibit 99.1
HCP Prices $450 Million of 3.75% Senior Unsecured Notes
LONG BEACH, CA January 18, 2012 HCP (NYSE:HCP) priced an offering of $450 million of 3.75% senior unsecured notes due 2019. The offering size was increased in response to investor demand. The price to the investors was 99.523% of the principal amount of the notes for an effective yield of 3.83%. The net proceeds of the offering will be approximately $443.7 million, which will be used to repay borrowings under HCPs revolving credit facility and for general corporate purposes.
The offering is expected to close on January 23, 2012, subject to customary closing conditions.
Citigroup, RBS and UBS Investment Bank acted as joint book-running managers for the offering.
This offering of notes may be made only by means of a prospectus supplement and a prospectus. A copy of the prospectus supplement and the prospectus relating to the offering will be filed with the Securities and Exchange Commission and, when available, can be obtained from: (i) Citigroup, Brooklyn Army Terminal, 140 58th Street, 8th Floor, Brooklyn, NY 11220, toll free at (800) 831-9146 or at batprospectusdept@citi.com; (ii) RBS Securities Inc., 600 Washington Boulevard, Stamford, CT 06901, Toll free 1-866-884-2071; or (iii) UBS Securities LLC, 299 Park Avenue, New York, New York 10171, Attention: Prospectus Specialist; or toll-free at 877-827-6444, ext. 561 3884.
This communication shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About HCP
HCP, Inc., an S&P 500 company, is a real estate investment trust (REIT) that invests primarily in real estate serving the healthcare industry in the United States. HCP has been a publicly traded NYSE listed company since 1985. HCPs portfolio of properties is distributed among distinct sectors of the healthcare industry, including senior housing, post-acute/skilled nursing, life science, medical office and hospital.
Forward-looking Statements
The statements contained in this release which are not historical facts are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These statements are subject to risks and uncertainties that could cause actual results to differ materially from those set forth in or implied by forward-looking statements. These risks and uncertainties include general economic conditions and the ability of HCP to complete the offering and receive the resulting proceeds. Some of these risks, and other risks, are described from time to time in HCPs Securities and Exchange Commission filings.
Contact
Timothy M. Schoen
Executive Vice President and Chief Financial Officer
(562) 733-5309
Exhibit 99.2
The expenses to be incurred by HCP, Inc. relating to the registration and offering of $450,000,000 aggregate principal amount 3.75% Senior Notes due 2019 pursuant to a Registration Statement on Form S-3 (File No. 333-161721) and a related prospectus supplement filed with the Securities and Exchange Commission on January 20, 2012 are estimated to be as follows:
|
|
Estimated Fees |
| |
SEC registration fee |
|
$ |
55,000 |
|
Legal fees and expenses |
|
250,000 |
| |
Accounting fees and expenses |
|
200,000 |
| |
Printing fees |
|
65,000 |
| |
Rating agency fees |
|
730,000 |
| |
Trustees fees and expenses |
|
12,000 |
| |
Miscellaneous |
|
|
| |
Total expenses |
|
$ |
1,312,000 |
|