-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, S/I5RE2g7FiLltPKXTZ5YEXPTEkuZc6OKC8AYpdKdgDu1n4xTmXEqfHkkatOy16F mlxDZcVWKVghd3b4HhPCSA== 0000898430-98-002629.txt : 19980723 0000898430-98-002629.hdr.sgml : 19980723 ACCESSION NUMBER: 0000898430-98-002629 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19980603 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980721 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH CARE PROPERTY INVESTORS INC CENTRAL INDEX KEY: 0000765880 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330091377 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08895 FILM NUMBER: 98669303 BUSINESS ADDRESS: STREET 1: 4675 MACARTHUR COURT STREET 2: SUITE 900 CITY: NEWPORT BEACH STATE: CA ZIP: 92660 BUSINESS PHONE: 9492210600 MAIL ADDRESS: STREET 1: 4675 MACARTHUR COURT STREET 2: SUITE 900 CITY: NEWPORT BEACH STATE: CA ZIP: 92660 8-K 1 FORM 8-K 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): June 3, 1998 HEALTH CARE PROPERTY INVESTORS, INC. ------------------------------------ (Exact name of registrant as specified in its charter) Maryland 1-8895 33-0091377 - -------- ------ ---------- (State or Other (Commission File Number) (I.R.S. Employer Jurisdiction of Identification No.) Incorporation) 4675 MacArthur Court, 9th Floor, Newport Beach, California 92660 ----------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (949) 221-0600 -------------- (Registrant's telephone number, including area code) Item 5. Other Events. ------------ MOPPRS (DEBT SECURITIES) OFFERING On June 18, 1997, Health Care Property Investors, Inc. (the "Company") filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 333-29485) (the "Registration Statement"), as amended by Amendment No. 1 to the Registration Statement filed with the Commission on June 26, 1997, relating to the registration under the Securities Act of 1933, as amended, of up to $385,000,000 aggregate offering price of common stock, par value $1.00 per share, preferred stock, par value $1.00 per share, and/or unsecured debt securities of the Company, which Registration Statement was declared effective on June 27, 1997. On June 3, 1998, the Company entered into a purchase agreement (the "Purchase Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc, pursuant to which the Company agreed to issue and sell up to $200,000,000 aggregate principal amount of the Company's 6 7/8% MandatOry Par Put Remarketed Securities due June 8, 2015 (the "MOPPRS"). Each of the Purchase Agreement, an Officers' Certificate, the MOPPRS note and an opinion with respect to tax matters is attached hereto as an Exhibit. Item 7. Financial Statements and Exhibits. --------------------------------- (c) Exhibits. 1.1 Purchase Agreement, dated June 3, 1998, among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc. 4.1 Officers' Certificate pursuant to Section 301 of the Indenture dated as of September 1, 1993 between the Company and The Bank of New York, as Trustee, establishing a series of securities entitled "6 7/8% MandatOry Par Put Remarketed Securities due June 8, 2015." 4.2 MOPPRS note described in Exhibit 4.1. 8.1 Opinion re tax matters. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereto duly authorized. Dated: July 20, 1998 HEALTH CARE PROPERTY INVESTORS, INC. By: /s/ Edward J. Henning ---------------------------------- Name: Edward J. Henning Title: Senior Vice President, General Counsel and Corporate Secretary 3 EXHIBIT INDEX 1.1 Purchase Agreement, dated June 3, 1998, among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc. 4.1 Officers' Certificate pursuant to Section 301 of the Indenture dated as of September 1, 1993 between the Company and The Bank of New York, as Trustee, establishing a series of securities entitled "6 7/8% MandatOry Par Put Remarketed Securities due June 8, 2015." 4.2 MOPPRS note described in Exhibit 4.1. 8.1 Opinion re tax matters. 4 EX-1.1 2 PURCHASE AGREEMENT EXHIBIT 1.1 ================================================================================ $200,000,000 HEALTH CARE PROPERTY INVESTORS, INC. (a Maryland corporation) 6 7/8% MandatOry Par Put Remarketed Securities ("MOPPRS") due June 8, 2015 PURCHASE AGREEMENT ------------------ "MandatOry Par Put Remarketed Securities" and "MOPPRS" are service marks owned by Merrill Lynch & Co., Inc. ================================================================================ TABLE OF CONTENTS
Page ---- Section 1. Representations and Warranties................................................ -3- (i) Compliance with Registration Requirements................................ -3- (ii) Incorporated Documents................................................... -4- (iii) Independent Accountants.................................................. -4- (iv) Financial Statements..................................................... -4- (v) No Material Adverse Change in Business................................... -5- (vi) Good Standing of the Company............................................. -5- (vii) Good Standing of Subsidiaries............................................ -5- (viii) REIT Status.............................................................. -6- (ix) Capitalization........................................................... -6- (x) Absence of Defaults and Conflicts........................................ -6- (xi) Absence of Proceedings................................................... -7- (xii) Absence of Further Requirements.......................................... -7- (xiii) Authorization of Purchase Agreement...................................... -7- (xiv) Authorization of Remarketing Agreement................................... -7- (xv) Absence of Default....................................................... -7- (xvi) Authorization and Description of the Securities and the Indenture........ -8- (xvii) Title to Property........................................................ -8- (xviii) Investment Company Act................................................... -8- (xix) Rating of Securities..................................................... -8- Section 2. Sale and Delivery to the Underwriter; Closing................................. -9- Section 3. Covenants of the Company...................................................... -9- (a) Compliance with Securities Regulations and Commission Requests........... -9- (b) Filing of Amendments..................................................... -10- (c) Delivery of Registration Statements...................................... -10- (d) Delivery of Prospectuses................................................. -10- (e) Continued Compliance with Securities Laws................................ -10- (f) Blue Sky Qualifications.................................................. -11- (g) Earnings Statement....................................................... -11- (h) Use of Proceeds.......................................................... -11- (i) Preparation of Prospectus Supplement..................................... -11- (j) Reporting Requirements................................................... -11- Section 4. Payment of Expenses........................................................... -12- Section 5. Conditions of the Underwriters' Obligations................................... -12- (a) Effectiveness of Registration Statement.................................. -12- (b) Opinions................................................................. -12- (c) Officers' Certificate.................................................... -18- (d) Accountant's Comfort Letter.............................................. -18- (e) Bring-down Comfort Letter................................................ -19- (f) Additional Documents..................................................... -19- Section 6. Indemnification............................................................... -19- (a) Indemnification of the Underwriters...................................... -19- (b) Indemnification of Company, Directors and Officers....................... -20- (c) Actions Against Parties; Notification.................................... -20- (d) Settlement without Consent if Failure to Reimburse....................... -21-
-i- (e) EDGAR.................................................................... -21- Section 7. Contribution.................................................................. -21- Section 8. Representations, Warranties and Agreements to Survive Delivery................ -23- Section 9. Termination of Agreement...................................................... -23- Section 10. Default by One or More of the Underwriters................................... -23- Section 11. Notices...................................................................... -24- Section 12. Parties...................................................................... -24- Section 13. Governing Law and Time....................................................... -24- Schedule A
-ii- $200,000,000 HEALTH CARE PROPERTY INVESTORS, INC. (a Maryland corporation) 6 7/8% MandatOry Par Put Remarketed Securities ("MOPPRS") due June 8, 2015 PURCHASE AGREEMENT ------------------ June 3, 1998 Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated NationsBanc Montgomery Securities LLC Salomon Brothers Inc c/o Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated Merrill Lynch World Headquarters North Tower World Financial Center New York, New York 10281-1209 Dear Sirs: Health Care Property Investors, Inc., a Maryland corporation (the "Company"), confirms its agreement with each of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), NationsBanc Montgomery Securities LLC and Salomon Brothers Inc (collectively, the "Underwriters", which term shall also include any Underwriter substituted as hereinafter provided in Section 10), for whom Merrill Lynch is acting as representative (in such capacity, Merrill Lynch shall hereinafter be referred to as the "Representative"), with respect to the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in Schedule A hereto of $200,000,000 aggregate principal amount of the Company's 6 7/8% MandatOry Put Par Remarketed Securities due June 8, 2015 (the "Securities"). The Securities are to be issued pursuant to an indenture dated as of September 1, 1993 (the "Indenture", which term as used herein includes any "MandatOry Par Put Remarketed Securities_" and "MOPPRS_" are service marks owned by Merrill Lynch & Co., Inc. -1- instrument establishing the form and terms of the Securities) between the Company and The Bank of New York, as trustee (the "Trustee"). The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-29485) and a related preliminary prospectus for the registration under the Securities Act of 1933, as amended (the "1933 Act"), of common stock, par value $1.00 per share, preferred stock, par value $1.00 per share, and debt securities, including the Securities (collectively, the "Registered Securities"), which registration statement has been declared effective by the Commission and copies of which have heretofore been delivered to you. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement, in the form in which it was declared effective, as amended through the date hereof, including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, is hereinafter referred to as the "Original Registration Statement". Any registration statement filed pursuant to Rule 462(b) of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") is herein referred to as the "Rule 462(b) Registration Statement". The Original Registration Statement, together with any Rule 462(b) Registration Statement, 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(i) hereof) relating to the Securities and the prospectus dated September 19, 1997 (the "Base Prospectus") relating to the Registered Securities, and has previously advised you of all further information (financial and other) with respect to the Company set forth therein. The Base Prospectus together with the Prospectus Supplement, in their respective forms on the date hereof (being the forms in which they are to be filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations), including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, are hereinafter referred to as, collectively, the "Prospectus", except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the offering and sale of the Securities which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters for such use. Unless the context otherwise requires, all references in this Agreement to documents, financial statements and schedules and other information which is "contained", "included", "stated", "described in" or "referred to" in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such documents, financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 (the "1934 Act") after the date of this Agreement which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be. The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Underwriters deem advisable after this Agreement has been executed and delivered. -2- 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") and as of the Closing Time referred to in Section 2 as follows: Compliance with Registration Requirements. The Company meets the ----------------------------------------- requirements for use of Form S-3 under the 1933 Act and the 1933 Act Regulations. Each of the Original Registration Statement and any Rule 462(b) Registration Statement and the Base Prospectus, at the respective times the Original Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective and as of the Representation Date, complied and comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933 Act Regulations), the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and as of the Representation Date do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. No stop order suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the time it is first provided to the Underwriters for such use) and at the Closing Time referred to in Section 2 hereof, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations -------- ------- and warranties in this subsection (i) shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through Merrill Lynch expressly for use in the Registration Statement or the Prospectus or the information contained in the Statement of Eligibility and Qualification of the Trustee under the 1939 Act filed as an exhibit to the Registration Statement (the "Form T- 1"). For purposes of this Section 1(a), all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system ("EDGAR"). Incorporated Documents. The documents incorporated or deemed to ---------------------- be incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, at the respective times the Registration Statement and any amendments thereto became effective, at the Representation Date and at Closing Time, did not, do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Independent Accountants. The accountants who certified the ----------------------- financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. Financial Statements. The financial statements and any -------------------- supporting schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; and, except as otherwise stated in the Registration Statement and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the selected financial data and the summary financial information included in the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement and the Prospectus; the pro forma financial statements and the related notes thereto incorporated by reference in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein; and the Company's ratios of earnings to fixed charges included in the Prospectus under the caption "Ratio of Earnings to Fixed Charges" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. No Material Adverse Change in Business. Since the respective -------------------------------------- dates as of which information is given in the Registration Statement and the Prospectus, 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 Common Stock, par value $1.00 per share ("Common Stock"), there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. 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 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. 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 or partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has power and authority as a corporation or partnership, as the case may be, to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each such corporate subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and all of the issued and outstanding partnership interests of each such subsidiary which is a partnership have been duly authorized (if applicable) and validly issued and are fully paid and non-assessable and (except for other partnership interests described in the Prospectus) are owned by the Company, directly or through corporate subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. REIT Status. The Company has at all times operated in such ----------- manner as to qualify as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"), and intends to continue to operate in such manner. Capitalization. The authorized capital stock of the Company is -------------- as set forth in the Company's Consolidated Balance Sheets as of December 31, 1997 included in the Company's annual report on Form 10-K for the year ended December 31, 1997 (the "Form 10-K") and incorporated by reference in the Prospectus (except for subsequent issuances, if any, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus and except for the 698,752 shares of Common Stock issued and sold by the Company in a public offering consummated on April 29, 1998); the shares of issued Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; the Company has the requisite corporate power and authority to execute and deliver this Agreement and the Securities and to perform its obligations hereunder and thereunder; and, after giving effect to the sale of the Securities and the sale of any other of the Registered Securities to be issued prior to the delivery of the Securities, the aggregate amount of Securities which have been issued and sold by the Company will not exceed the aggregate amount of theretofore unsold Registered Securities. Absence of Defaults and Conflicts. Neither the Company nor any --------------------------------- of its subsidiaries is in violation of its charter or bylaws or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject and in which the violation or default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or 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. Absence of Proceedings. There is no action, suit or proceeding ---------------------- before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which might result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement or any transaction contemplated hereby; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in or incorporated by reference in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no contracts or documents of the Company or any of its subsidiaries which are required to be filed or incorporated by reference as exhibits to, or incorporated by reference in, the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so filed. 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 the 1933 Act or the 1933 Act Regulations or state securities laws. Authorization of Purchase Agreement. This Agreement has been ----------------------------------- duly authorized, executed and delivered by the Company and, upon execution and delivery by the Underwriters, will be a valid and legally binding agreement of the Company. Authorization of Remarketing Agreement. The Remarketing -------------------------------------- Agreement (the "Remarketing Agreement"), dated as of June 8, 1998, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Remarketing Dealer") has been duly authorized, executed and delivered by the Company and, upon execution and delivery by the Remarketing Dealer, will be a valid and legally binding agreement of the Company. Absence of Default. No material default or event of default with ------------------ respect to any indebtedness for borrowed money (other than non-recourse obligations) of the Company or any of its subsidiaries entitling, or which, with notice or lapse of time or both, would entitle, the holders thereof to accelerate the maturity thereof, exists or will exist as a result of the execution and delivery of this Agreement, the Remarketing Agreement or the Indenture, the issuance and sale of the Securities or the consummation of the transactions contemplated hereby or thereby. Authorization and Description of the Securities and the ------------------------------------------------------- Indenture. The Securities have been duly and validly authorized for --------- issuance and sale to the Underwriters pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of the Indenture and this Agreement against payment of the consideration therefor set forth herein, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors or by general equity principles, and will be entitled to the benefits of the Indenture; the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors or by general equity principles; the Securities and the Indenture conform in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus; the issuance of the Securities is not subject to preemptive rights, rights of first refusal or similar rights; and, after giving effect to the sale of the Securities and the sale of any other of the Registered Securities to be issued prior to the delivery of the Securities, the aggregate amount of Securities which have been issued and sold by the Company will not exceed the aggregate amount of theretofore unsold Registered Securities pursuant to the Registration Statement. 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 or incorporated by reference in the Prospectus or such as would not materially adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; the Company and its subsidiaries have obtained satisfactory confirmations (consisting of policies of title insurance or commitments or binders therefor or opinions of counsel based upon the examination of abstracts) confirming, except as otherwise described in the Prospectus, (A) that the Company and its subsidiaries have the foregoing title to such real property and interests in real property, and (B) that the instruments securing the Company's and its subsidiaries' real estate mortgage loans create valid liens upon the real properties described in such instruments enjoying the priorities intended, subject only to exceptions to title which have no material adverse effect on the value of such real properties and interests in relation to the Company and its subsidiaries considered as one enterprise; and no material real property and buildings are held under lease by the Company (other than long-term ground leases). Investment Company Act. The Company is not required to be ---------------------- registered under the Investment Company Act of 1940, as amended (the "1940 Act"). Rating of Securities. The senior debt securities of the -------------------- Company are currently rated "Baa1" by Moody's Investor's Service, Inc. ("Moody's") and "BBB+" by Standard & Poor's Ratings Service ("Standard & Poor's"). The Securities will be rated by Moody's and Standard & Poor's. Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. Sale and Delivery to the Underwriter; Closing. --------------------------------------------- On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at 101.748% of the principal amount thereof, the principal amount of Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the office of Latham & Watkins, 633 West Fifth Street, Suite 4000, Los Angeles, California 90071-2007, or at such other place as shall be agreed upon by the Underwriters and the Company, at 7:00 A.M., Los Angeles time, on June 8, 1998 or such other time not later than ten business days after such date as shall be agreed upon by the Underwriters and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Underwriters of certificates for the Securities to be purchased by the Underwriters. Certificates for the Securities shall be in such denominations and registered in such names as the Underwriters may request in writing at least one business day before Closing Time. The certificates for the Securities will be made available for examination and packaging by the Underwriters not later than 10:00 A.M. on the last business day prior to Closing Time in New York, New York. Covenants of the Company. The Company covenants with each Underwriter ------------------------ as follows: Compliance with Securities Regulations and Commission Requests. The -------------------------------------------------------------- Company will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement or Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from qualification of the Securities under state securities or Blue Sky laws or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the second business day immediately succeeding the date hereof. Filing of Amendments. The Company will give the Underwriters notice -------------------- of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities that differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will furnish the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. Delivery of Registration Statements. The Company will deliver to the ----------------------------------- Underwriters as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) as the Underwriters may reasonably request and will also deliver to the Underwriters as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith) as the Underwriters may reasonably request. Delivery of Prospectuses. The Company will furnish to the ------------------------ Underwriters, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. Continued Compliance with Securities Laws. If any event shall occur ----------------------------------------- as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. 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 the Underwriters may designate; provided, however, -------- ------- that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities shall have been so qualified, the Company will file such statements and reports as may be required by laws of such jurisdiction to continue such qualification in effect for as long as may be required for the distribution of the Securities. Earnings Statement. The Company will make generally available to its ------------------ security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. 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". 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 Underwriters and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the 1933 Act Regulations copies of the Prospectus (including such Prospectus Supplement). Reporting Requirements. The Company, during the period when the ---------------------- Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. Payment of Expenses. The Company will pay all expenses incident to the ------------------- performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (ii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (iv) any fees payable in connection with the rating of the Securities, (v) the fees and disbursements of the Company's counsel and accountants, (vi) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fee and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a Supplemental Blue Sky Survey, (vii) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement as originally filed and of each amendment thereto, of each preliminary prospectus and preliminary prospectus supplement and of the Prospectus and Prospectus Supplement and any amendments or supplements thereto, including any abbreviated term sheet delivered by the Company pursuant to Rule 434 of the 1933 Act Regulations, (viii) the printing and delivery to the Underwriters of copies of the Supplemental Blue Sky Survey and the Indenture and (ix) any fees and expenses of a depositary in connection with holding the Securities in book-entry form. If this Agreement is cancelled or terminated by the Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fee and disbursements of counsel for the Underwriters. 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: Effectiveness of Registration Statement. At Closing Time no stop --------------------------------------- order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The Prospectus (including the Prospectus Supplement referred to in Section 3(i) hereof) shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to the Underwriters of such timely filing or transmittal. Opinions. At Closing Time the Underwriters shall have received: -------- The favorable opinion, dated as of Closing Time, of Latham & Watkins, special counsel for the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that: The Registration Statement (including any Rule 462(b) Registration Statement) has been declared effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings therefor have been initiated or threatened by the Commission. The Registration Statement (including any Rule 462(b) Registration Statement) at the time it became effective and at the Closing Date, appeared on its face to comply as to form in all material respects with the requirements for registration statements on Form S-3 under the 1933 Act and the 1933 Act Regulations; it being understood that such counsel need express no opinion with respect to documents incorporated by reference therein except as set forth in paragraph (iii) below, or the financial statements, schedules and other financial data and related schedules included or incorporated by reference in the Registration Statement. In passing upon the compliance as to form of the Registration Statement, such counsel may assume that the statements made and incorporated by reference therein are true, correct and complete. Each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus (other than the financial statements, schedules and other financial data and related schedules included or incorporated by reference therein, as to which no opinion need be rendered), at the time it was filed with the Commission, appeared on its face to comply as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. In passing upon compliance as to form of such documents, such counsel may assume that the statements made therein are true, correct and complete. To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Prospectus. No authorization, approval, consent, decree or order of any Federal or California court or governmental authority or agency is required for the consummation by the Company of the transactions contemplated by this Agreement, the Remarketing Agreement or the Indenture, or in connection with the sale of the Securities hereunder, except such as may have been obtained or rendered, as the case may be, or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws (including real estate syndication laws). The issue and sale of the Securities and the compliance by the Company with the provisions of this Agreement, the Remarketing Agreement and the Indenture and the consummation of the transactions contemplated herein and therein will not result in a breach or violation of any material term or provision of, or constitute a default under the Material Agreements (as defined in such opinion) at the date hereof; nor will such action, to the best of such counsel's knowledge, result in any material violation of any statute or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that such counsel need express no opinion under federal securities laws except as expressly otherwise provided in this Section 5(b)(1), and no opinion under state securities laws (including real estate syndication laws) or any antifraud laws. The Company is not required to be registered under the 1940 Act. The Indenture has been duly qualified under the 1939 Act. The Securities are in due and proper form and when executed and authenticated in accordance with the terms of the Indenture and delivered pursuant to the provisions of this Agreement against payment of the consideration therefor, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and each holder of the Securities will be entitled to the benefits of the Indenture. The Indenture and the Remarketing Agreement are legally valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms. The information in the Prospectus under the caption "Description of the MOPPRS," insofar as such statements constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is accurate in all material respects. The favorable opinion, dated as of Closing Time, of Latham & Watkins, special counsel for the Company, in form and scope satisfactory to counsel for the Underwriters and subject to customary assumptions, limitations and exceptions acceptable to counsel for the Underwriters, to the effect that: the Company was organized in conformity with the requirements for qualification as a real estate investment trust under the Code commencing with its taxable year ending December 31, 1985, and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code; and the information in the Prospectus under the captions "Certain Federal Income Tax Considerations to the Company" and "Certain United States Federal Income Tax Considerations," insofar as such statements constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is accurate in all material respects. The favorable opinion, dated as of Closing Time, of Ballard Spahr Andrews & Ingersoll, LLP, Maryland counsel for the Company, in form and scope satisfactory to counsel for the Underwriter, to the effect that: The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. The authorized capital stock of the Company consists of (a) 50,000,000 shares of Preferred Stock, par value one dollar ($1.00) per share, of which 2,760,000 shares have been classified as Series A Preferred Stock; and (b) 100,000,000 shares of Common Stock, par value one dollar ($1.00) per share. The execution and delivery of each of the Indenture and the Remarketing Agreement has been duly 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 and the Remarketing Agreement have each been duly executed and delivered by the Company. 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. Texas HCP, Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has 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 such subsidiary have been duly authorized and validly issued, and are fully paid and non-assessable and are owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. The execution and delivery of this Agreement has been duly 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. The issuance and sale of the Securities by the Company and the compliance by the Company with the provisions of this Agreement, the Remarketing Agreement and the Indenture and the consummation of the transactions contemplated thereby (as related to the Securities with respect to the Indenture), will not result in any violation of the provisions of the charter or bylaws of the Company. No authorization, approval, consent, decree or order of any court or governmental authority or agency is required under the Maryland General Corporation Law for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the sale of the Securities hereunder, except such as may have been obtained or rendered, as the case may be, or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws. In rendering its opinion, Ballard Spahr Andrews & Ingersoll, LLP shall state that each of Brown & Wood llp, in rendering its opinion pursuant to Section 5(b)(5), and Latham & Watkins, in rendering its opinion pursuant to Section 5(b)(1), may rely upon such opinion as to matters arising under the laws of the State of Maryland. The favorable opinion, dated as of Closing Time, of Edward J. Henning, General Counsel of the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that: To the best of such counsel's knowledge and information, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. To the best of such counsel's knowledge and information, each Significant Subsidiary of the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. To the best of such counsel's knowledge and information, no material default exists in the due performance or observance by the Company or any of its subsidiaries of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein which would have a material adverse effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. The authorized, issued and outstanding capital stock of the Company is as set forth in the Company's Consolidated Balance Sheets as of December 31, 1997 included in the Form 10-K and incorporated by reference in the Prospectus (except for subsequent issuances, if any, pursuant to reservations, agreements, dividend reinvestment plans or employee or director stock plans referred to in the Prospectus), and the shares of issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and non-assessable. The favorable opinion, dated as of Closing Time, of Brown & Wood llp, counsel for the Underwriters, with respect to the matters set forth in (i), (ii), (viii), (ix), (x) and (xi) of subsection (b)(1) and (i), (iv), (v) and (vii) of subsection (b)(3) of this Section. In rendering such opinion, Brown & Wood llp may rely upon the opinion of Ballard Spahr Andrews & Ingersoll, rendered pursuant to Section 5(b)(3) as to matters arising under the laws of the State of Maryland. In giving their opinions required by subsections (b)(1) and (b)(5), respectively, of this Section, Latham & Watkins and Brown & Wood llp shall each additionally state that nothing has come to their attention that would cause them to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the Representation Date, in which case at the time it is first provided to the Underwriters for such use) or at Closing Time, included 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 opinion with respect to the financial statements, schedules and other financial data in the Registration Statement or the Prospectus. In giving their opinions, Latham & Watkins and Brown & Wood LLP may rely, to the extent recited therein, (A) as to all matters of fact, upon certificates and written statements of officers of the Company, 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. 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, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Underwriters shall have received a certificate of the President or a Vice President of the Company and the chief financial or chief accounting officer of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has performed or complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best knowledge and information of such officer, threatened by the Commission. As used in this Section 5(c), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Securities. Accountant's Comfort Letter. At the time of execution of this --------------------------- Agreement, the Underwriters shall have received from Arthur Andersen LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants "comfort letters" to underwriters with respect to financial statements and financial information included and incorporated by reference in the Registration Statement and the Prospectus (including, without limitation, the pro forma financial statements, if any) and substantially in the same form as the draft letter previously delivered to and approved by the Underwriters. Bring-down Comfort Letter. At Closing Time the Underwriters ------------------------- shall have received from Arthur Andersen LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (d) of this Section, except that the specified date referred to therein shall be a date not more than three business days prior to Closing Time. 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 Underwriters and counsel for the Underwriters. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notifying the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect. Indemnification. --------------- Indemnification of the Underwriters. The Company agrees to ----------------------------------- indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows: against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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 against any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of counsel chosen by Merrill Lynch), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that (A) this indemnity agreement shall not apply to any - -------- ------- loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto), and (B) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus or preliminary prospectus supplement, this indemnity agreement shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter within the meaning of Section 15 of the 1933 Act) to the extent that any such loss, liability, claim, damage or expense of such Underwriter or any person controlling such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given by such Underwriter or on such Underwriter's behalf at or prior to the written confirmation of the sale of such Securities to such person, a copy of the Prospectus (as then amended or supplemented), if required by law to have been so delivered, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, liability, claim, damage or expense. Indemnification of 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 against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by such Underwriter through Merrill Lynch expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto). 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 Merrill Lynch, 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 this 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. 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. EDGAR. For purposes of this Section 6, all references to ----- the Registration Statement, any preliminary prospectus, preliminary prospectus supplement or the Prospectus, or any amendment or supplement to any of the foregoing, shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR. 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 as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company as set forth on the cover of the Prospectus (or, if Rule 434 is used, the corresponding location on the Term Sheet) and the total commissions or other compensation or remuneration received by the Underwriters bears to the total purchase price of the Securities. 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, the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities were offered exceeds the amount of any damages which the Underwriters have 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 person, if any, who controls any 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. Representations, Warranties and Agreements to Survive Delivery. All -------------------------------------------------------------- representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto or thereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or any controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. Termination of Agreement. (a) The Underwriters may terminate this ------------------------ Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any outbreak of hostilities or other calamity or crisis 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 judgement of the Underwriters, impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, (iii) if trading in the securities of the Company has been suspended by the Commission, or if trading generally on either the American Stock Exchange or the New York Stock Exchange or in the NASDAQ National 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 order of the Commission, the NASD or any other governmental authority, or if a banking moratorium has been declared by either federal, New York or California authorities, or (iv) if any of the nationally recognized securities rating agencies specified in Section 1(a)(xix) hereof shall have publicly announced that it has (A) placed any senior debt securities of the Company on what is commonly termed a "watch list" for possible downgrading or (B) downgraded any senior debt securities of the Company. As used in this Section 9(a), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Securities. 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 1, 4, 6, 7 and 8 shall remain in effect. Default by One or More of the Underwriters. If any Underwriter shall ------------------------------------------ fail at Closing Time to purchase the Securities which it is obligated to purchase hereunder (the "Defaulted Securities"), the remaining Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not the obligation, within 24 hours thereafter, to make arrangements 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 Non-Defaulting Underwriters shall have not completed such arrangements within such 24-hour period, then this Agreement shall terminate without liability on the part of any Non-Defaulting Underwriter. No action pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Non-Defaulting Underwriters or the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. Notices. All notices and other communications hereunder shall be ------- in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of written telecommunication. Notices to the Underwriters shall be directed to it at Merrill Lynch & Co., 10877 Wilshire Boulevard, Suite 1900, Los Angeles, CA 90024, Attention: James F. Flaherty III, Managing Director, and notices to the Company shall be directed to it at 4675 MacArthur Court, 9th Floor, Newport Beach, California 92660, Attention: Kenneth B. Roath, President and Chief Executive Officer, with a copy to Pamela B. Kelly, Esq. at Latham & Watkins, 633 West Fifth Street, Suite 4000, Los Angeles, California 90071. 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. Governing Law and Time. This Agreement shall be governed by and ---------------------- construed in accordance with the laws of the State of California applicable to agreements made and to be performed in such State. Unless stated otherwise, all specified times of day refer to New York City time. 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 Underwriter and the Company in accordance with its terms. Very truly yours, HEALTH CARE PROPERTY INVESTORS, INC. By: /s/ Kenneth B. Roath --------------------------------- Name: Kenneth B. Roath Title: Chairman, President and Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED NATIONSBANC MONTGOMERY SECURITIES LLC SALOMON BROTHERS INC By: Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Paul M. Meurer ------------------------------------------ Authorized Signatory SCHEDULE A
Underwriter Principal ----------- Amount of Securities ---------- Merrill Lynch, Pierce, Fenner & Smith Incorporated................................................ $140,000,000 NationsBanc Montgomery Securities LLC.................................. 30,000,000 Salomon Brothers Inc................................................... 30,000,000 ____________ Total.................................................................. $200,000,000 ============
EX-4.1 3 OFFICERS CERTIFICATE EXHIBIT 4.1 HEALTH CARE PROPERTY INVESTORS, INC. Officers' Certificate --------------------- James G. Reynolds and Edward J. Henning do hereby certify that we are the duly elected Executive Vice President and Chief Financial Officer, and Senior Vice President, General Counsel and Corporate Secretary, respectively, of Health Care Property Investors, Inc., a Maryland corporation (the "Company"). We further certify that, pursuant to resolutions of the Board of Directors of the Company, duly adopted at meetings held, or by written consent, on April 23, 1997, July 17, 1997, May 26, 1998 and June 3, 1998 and attached hereto as Exhibit A-1, a series of Securities of the Company shall be established pursuant to Section 301 of the Indenture dated as of September 1, 1993 (the "Indenture") between the Company and The Bank of New York, as Trustee, and that said series shall have the following terms and provisions: the title of such series of Securities shall be 6 7/8% MandatOry Par Put Remarketed Securities ("MOPPRS") due June 8, 2015 (referred to herein as the "MOPPRS"); the MOPPRS which may be authenticated and delivered under the Indenture shall be limited to $200,000,000 aggregate principal amount (except as otherwise provided in Sections 304, 306, 906 or 1107 of the Indenture); the MOPPRS shall be issued as Registered Securities only, without coupons, and beneficial interests in the MOPPRS may be acquired, or subsequently transferred, only in denominations of $1,000 or in any amount in excess thereof which is an integral multiple of $1,000; the MOPPRS shall be issued in the form of a permanent global certificate dated June 8, 1998; the principal amount of the MOPPRS shall be payable on June 8, 2015, subject to mandatory redemption by the Company on June 8, 2005 (the "Remarketing Date") in the event that the Remarketing Dealer (as defined below) does not elect to remarket the MOPPRS on the Remarketing Date as provided below; interest on the MOPPRS shall accrue at a fixed rate of interest as more fully described in the attached form of MOPPRS; the MOPPRS will bear interest from June 8, 1998, and such interest will be payable semi-annually on June 8 and December 8 of each year, commencing on December 8, 1998 (each, an "Interest Payment Date"); the Record Dates with respect to the MOPPRS shall be the fifteenth calendar day, whether or not a Business Day, immediately preceding the related Interest Payment Date; interest on the MOPPRS will be calculated on the basis of a 360-day year of twelve 30-day months; principal and interest payable with respect to the MOPPRS shall be payable at the Corporate Trust Office of The Bank of New York, located at 101 Barclay Street, Floor 21W, New York, New York 10286; the MOPPRS are not subject to any sinking fund; the MOPPRS shall be issued in the form of one Book-Entry Security, and the Depositary for such MOPPRS shall be The Depository Trust Company or its nominee, and the beneficial owners of interests in such Book-Entry Security may not exchange any such interests (except as provided by Section 305 of the Indenture); Repurchase. The MOPPRS are subject to mandatory tender on the Remarketing Date. If Merrill Lynch, Pierce, Fenner and Smith Incorporated (the "Remarketing Dealer") has elected to remarket the MOPPRS (as described in the Company's Prospectus Supplement dated June 3, 1998, with respect to the offering of the MOPPRS (the "Prospectus Supplement")), the MOPPRS will be subject to mandatory tender to the Remarketing Dealer at 100% of the principal amount thereof for remarketing on the Remarketing Date, except in the limited circumstances described in the Prospectus Supplement. If the Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the Remarketing Date or elects not to remarket the MOPPRS, or in certain other limited circumstances described in the Prospectus Supplement, the Company shall be required to repurchase the MOPPRS from the Beneficial Owners (as defined in the form of MOPPRS) thereof at 100% of the principal amount thereof plus accrued interest. Redemption. If the Remarketing Dealer elects to remarket the MOPPRS, the MOPPRS will be subject to redemption from the Remarketing Dealer, in whole but not in part, at the option of the Company on the Remarketing Date, at the Optional Redemption Price (as defined in the form of MOPPRS). We further certify, having read the Indenture, including Sections 303 and 501 thereof, and the definitions in the Indenture relating thereto and certain other corporate documents and records, and having made such examination or investigation as we deemed necessary to enable us to express an informed opinion, that all conditions precedent to the authentication and delivery of the MOPPRS have been complied with and, to the best of our knowledge, no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Securities has occurred and is continuing. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Indenture. IN WITNESS WHEREOF, the undersigned have executed this Officers' Certificate as of this 8th day of June, 1998. /s/ James G. Reynolds -------------------------------------------------- James G. Reynolds Executive Vice President and Chief Financial Officer /s/ Edward J. Henning -------------------------------------------------- Edward J. Henning Senior Vice President, General Counsel and Corporate Secretary EX-4.2 4 MOPPRS NOTE EXHIBIT 4.2 REGISTERED PRINCIPAL AMOUNT NO. 1 $200,000,000 CUSIP NO. 421915 AG 4 HEALTH CARE PROPERTY INVESTORS, INC. 6 7/8% MandatOry Par Put Remarketed Securities(SM) ("MOPPRS(SM)") due June 8, 2015 UNLESS THIS MOPPRS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH MOPPRS ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS 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, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MOPPRS IN CERTIFICATED FORM, THIS MOPPRS MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. HEALTH CARE PROPERTY INVESTORS, 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 Two Hundred Million Dollars ($200,000,000) on June 8, 2015 (the "Stated Maturity Date"), and to pay interest thereon from June 8, 1998, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on June 8 and December 8 of each year (each, an "Interest Payment Date"), commencing December 8, 1998, at the rate of 6 7/8% per annum to June 8, 2005 (the "Remarketing Date"), and thereafter, subject to the terms and conditions set forth herein, at the rate determined by the Remarketing Dealer (as defined below) in accordance with the procedures set forth below (the "Interest Rate to Maturity"), 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 MOPPRS (or one or more predecessor MOPPRS) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day whether or not a Business Day (as defined in the Indenture) - ------------------- "MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service marks owned by Merrill Lynch & Co., Inc. immediately preceding the related Interest Payment Date. 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 MOPPRS (or one or more predecessor MOPPRS) 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 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 MOPPRS 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 MOPPRS will be made by the Company in immediately available funds. If, pursuant to the Remarketing Agreement, dated as of the date hereof (the "Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the Company, the Remarketing Dealer elects to remarket the MOPPRS, then, except as otherwise set forth herein, (i) this MOPPRS shall be subject to mandatory tender to the Remarketing Dealer for remarketing on the Remarketing Date, on the terms and subject to the conditions set forth herein, and (ii) on and after the Remarketing Date, this MOPPRS shall bear interest at the Interest Rate to Maturity determined by the Remarketing Dealer in accordance with the procedures set forth in Section 3 herein. The Remarketing Dealer's duties set forth herein shall be performed pursuant to the Remarketing Agreement. Payment of the principal of and interest on this MOPPRS will be made at the 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 in 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 MOPPRS 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 MOPPRS 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 MOPPRS 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 under its corporate seal this 8th day of June, 1998. Health Care Property Investors, Inc., a Maryland corporation By: /s/ James G. Reynolds ----------------------------------------------- Name: James G. Reynolds Title: Executive Vice President and Chief Financial Officer Attest: By: /s/ Edward J. Henning -------------------------------------- Name: Edward J. Henning Title: Corporate Secretary [SEAL] TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. The Bank of New York, as Trustee By: /s/ Mary Lagumina ------------------------------------- Authorized Signatory Dated: June 8, 1998 [REVERSE OF SECURITY] 1. Indenture. - --------------- (a) This MOPPRS is one of a duly authorized issue of securities of the Company (herein called the "MOPPRS"), issued as a series of securities under an indenture dated as of September 1, 1993 (the "Indenture"), between the Company and The Bank of New York, as trustee (the "Trustee," which term includes any successor trustee under the Indenture with respect to the MOPPRS), to which Indenture and all indentures supplemental thereto 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 MOPPRS and of the terms upon which the MOPPRS are, and are to be, authenticated and delivered. This MOPPRS is the duly authorized series designated as the "6 7/8% MandatOry Par Put Remarketed Securities(SM) ("MOPPRS(SM)") due June 8, 2015," limited (subject to exceptions provided in the Indenture) in aggregate principal amount to $200,000,000. All terms used in this MOPPRS which are defined in the Indenture shall have the meanings assigned to them in the Indenture. (b) If an Event of Default with respect to the MOPPRS shall occur and be continuing, the principal of the MOPPRS may be declared due and payable in the manner and with the effect provided in the Indenture. (c) The MOPPRS are not subject any sinking fund. (d) As provided in and subject to the provisions of the Indenture, the Holder of this MOPPRS 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 MOPPRS, the Holders of not less than 25% in principal amount of the MOPPRS 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 MOPPRS 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 MOPPRS for the enforcement of any payment of principal hereof or any interest on or after the respective due dates expressed herein. 2. Mandatory Tender. Provided that on a Business Day not earlier than thirty - -------------------- Business Days prior to the Remarketing Date and not later than five Business Days prior to the Remarketing Date the Remarketing Dealer notifies the Company and the Trustee of its election to purchase the MOPPRS on the Remarketing Date for remarketing (the "Notification Date"), the MOPPRS shall be subject to mandatory tender to the Remarketing Dealer, and the Remarketing Dealer shall be obligated to purchase the MOPPRS, for remarketing on the Remarketing Date, subject in each case to the conditions described herein and set forth in the Remarketing Agreement. The purchase price for the tendered MOPPRS shall equal 100% of the principal amount thereof. From and after the Remarketing Date, the MOPPRS shall bear interest at the Interest Rate to Maturity determined pursuant to Section 3 hereof. If the Remarketing Dealer elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to purchase the MOPPRS on the Remarketing Date is subject to the conditions specified in Section 8 of the Remarketing Agreement. If the Remarketing Dealer purchases any MOPPRS on the Remarketing Date, it must purchase all of the MOPPRS. If for any reason the Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date, the Company shall be required to repurchase from the Beneficial Owners thereof, and the Beneficial Owners will be required to sell to the Company, all of the MOPPRS at a price equal to the principal amount thereof plus all accrued and unpaid interest, if any, on the MOPPRS to the Remarketing Date as provided in Section 4 hereof. "Beneficial Owner" shall mean each person who acquires an interest in the MOPPRS which is reflected on the records of the DTC through its participants. 3. Determination of Interest Rate to Maturity. - --------------------------------------------- (a) Subject to the Remarketing Dealer's election to remarket the MOPPRS as provided in Section 2 hereof and subject further to Sections 3(c) and 5 hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be determined by the Remarketing Dealer no later than 3:30 p.m., New York City time, on and as of the third Business Day immediately preceding the Remarketing Date (the "Determination Date") to the nearest one hundred-thousandth (0.00001) of one percent per annum, and will be equal to the sum of 5.565% (the "Base Rate") plus the Applicable Spread (as defined below), which will be based on the Dollar Price (as defined below) of the MOPPRS. The "Applicable Spread" will be the lowest bid indication, expressed as a spread (in the form of a percentage or in basis points) above the Base Rate, obtained by the Remarketing Dealer on the Determination Date from the bids quoted by five Reference Corporate Dealers (as defined below) for the full aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i) an issue date equal to the Remarketing Date, with settlement on such date without accrued interest, (ii) a maturity date equal to the Stated Maturity Date of the MOPPRS, and (iii) a stated annual interest rate, payable semiannually on each Interest Payment Date for the MOPPRS, equal to the Base Rate plus the spread bid by the applicable Reference Corporate Dealer. If fewer than five Reference Corporate Dealers bid as described above, then the Applicable Spread shall be the lowest of such bid indications obtained as described above. The Interest Rate to Maturity announced by the Remarketing Dealer, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the Company and the Trustee. "Dollar Price" means, with respect to the MOPPRS, the present value determined by the Remarketing Dealer, as of the Remarketing Date, of the Remaining Scheduled Payments (as defined below) discounted to the Remarketing Date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at the Treasury Rate (as defined below). "Reference Corporate Dealers" means each of Merrill Lynch, Goldman, Sachs & Co., Salomon Brothers Inc, NationsBanc Montgomery Securities LLC and J.P. Morgan Securities, Inc. and their respective successors; provided, however, that if any of the foregoing or their affiliates cease to be a leading dealer of publicly traded debt securities of the Company in The City of New York (a "Primary Dealer") the Remarketing Dealer shall substitute therefor another Primary Dealer. "Treasury Rate" means, with respect to the Remarketing Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) yield to maturity of the Comparable Treasury Issues (as defined below), assuming a price for the Comparable Treasury Issues (expressed as a percentage of its principal amount), equal to the Comparable Treasury Price (as defined below) for the Remarketing Date. "Comparable Treasury Issues" means the United States Treasury security or securities selected by the Remarketing Dealer as having an actual or interpolated maturity or maturities comparable to the remaining term of the MOPPRS being remarketed. "Comparable Treasury Price" means, with respect to the Remarketing Date, (a) the offer prices for the Comparable Treasury Issues (expressed in each case as a percentage of its principal amount) on the Determination Date, as set forth on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or (b) if such page (or any successor page) is not displayed or does not contain such offer prices on the Determination Date, (i) the average of the Reference Treasury Dealer Quotations for the Remarketing Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations. "Telerate Page 500" means the display designated as "Telerate Page 500" on Dow Jones Markets Limited (or such other page as may replace Telerate Page 500 on such service) or such other service displaying the offer prices specified in (a) above as may replace Dow Jones Markets Limited. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and the Remarketing Date, the offer prices for the Comparable Treasury Issues (expressed in each case as a percentage of its principal amount) quoted to the Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., New York City time, on the Determination Date. "Reference Treasury Dealer" means each of Credit Suisse First Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc (or their respective affiliates which are primary U.S. Government securities dealers) and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer shall substitute therefor another Primary Treasury Dealer. "Remaining Scheduled Payments" means, with respect to the MOPPRS, the remaining scheduled payments of the principal thereof and interest thereon, calculated at the Base Rate only, that would be due after the Remarketing Date to and including the Stated Maturity Date, as determined by the Remarketing Dealer. (b) Provided the Remarketing Dealer has previously notified the Company and the Trustee on the Notification Date of its intention to purchase all of the MOPPRS on the Remarketing Date and subject to Section 5 below, the Remarketing Dealer will notify the Company, the Trustee and DTC by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the Determination Date, of the Interest Rate to Maturity. All of the tendered MOPPRS shall be automatically delivered to the account of the Trustee, by book-entry through DTC pending payment of the purchase price therefor, on the Remarketing Date. In the event that the Remarketing Dealer purchases the tendered MOPPRS on the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee to make payment to the DTC Participant of each Beneficial Owner of MOPPRS, by book- entry through DTC no later than the close of business on the Remarketing Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that have been purchased for remarketing by the Remarketing Dealer. If the Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date, it shall be the obligation of the Issuer to make or cause to be made such payment for the MOPPRS, as provided in Section 4 hereof. In any case, the Issuer shall make or cause the Trustee to make payment of interest to each Beneficial Owner of MOPPRS due on the Remarketing Date by book-entry through DTC no later than the close of business on the Remarketing Date. "DTC Participant" shall mean any person that has an account with DTC through which Beneficial Owners acquire, directly or indirectly, an interest in the MOPPRS. The transactions set forth in this Section shall be executed on the Remarketing Date through DTC in accordance with the procedures of DTC, and the accounts of the respective DTC Participants will be debited and credited and the MOPPRS delivered by book-entry as necessary to effect the purchases and sales thereof. The tender and settlement procedures set forth above, including provisions for payment by purchasers of MOPPRS in the remarketing or for payment to selling Beneficial Owners of MOPPRS, may be modified to the extent required by DTC or to the extent required to facilitate the tender and remarketing of MOPPRS in certificated form, if the book-entry system is no longer available for the MOPPRS at the time of the remarketing. In addition, the Remarketing Dealer may, without the consent of Holders or Beneficial Owners of the MOPPRS, modify the tender and settlement procedures set forth above in order to facilitate the tender and settlement process. As long as DTC's nominee holds the certificates representing any MOPPRS in the book-entry system of DTC, no certificates for such MOPPRS will be delivered by any selling Beneficial Owner to reflect any transfer of such MOPPRS effected in the remarketing. (c) Notwithstanding any provision herein to the contrary, upon the occurrence, at any time after determination of the Interest Rate to Maturity on the Determination Date and prior to 3:30 p.m., New York City time, on the Business Day immediately preceding the Remarketing Date, of any event as specified in Section 11(b) of the Remarketing Agreement, the Remarketing Dealer, in its sole discretion at any time between the Determination Date and 3:30 p.m., New York City time, on the Business Day immediately preceding the Remarketing Date, may elect to purchase the MOPPRS for remarketing and determine a new Interest Rate to Maturity in the manner provided in Section 3(a) hereof, except that for purposes of determining the new Interest Rate to Maturity pursuant to this paragraph, the Determination Date referred to therein shall be the date of such election and redetermination. The Remarketing Dealer shall notify the Company, the Trustee and DTC by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the date of such election, of the new Interest Rate to Maturity applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall supersede and replace any Interest Rate to Maturity previously determined by the Remarketing Dealer and, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing Date, the Company and the Trustee. 4. Repurchase. In the event that (i) the Remarketing Dealer for any reason - -------------- does not notify the Issuer of the Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination Date, or (ii) prior to the Remarketing Date, the Remarketing Dealer has resigned and no successor has been appointed on or before the Determination Date, or (iii) at any time after the Remarketing Dealer elects on the Notification Date to remarket the MOPPRS, the Remarketing Dealer terminates the Remarketing Agreement due to the occurrence of any event as set forth in Section 8 or Section 11 of the Remarketing Agreement, or (iv) the Remarketing Dealer for any reason does not elect to purchase the MOPPRS for remarketing on the Remarketing Date, or (v) the Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the Remarketing Date, the Company shall repurchase all the MOPPRS as a whole on the Remarketing Date at a price equal to 100% of the principal amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the Remarketing Date. In any such case, payment will be made by the Company through the Trustee to the DTC Participant of each tendering Beneficial Owner of MOPPRS, by book-entry through DTC no later than the close of business on the Remarketing Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS. 5. Redemption. If the Remarketing Dealer elects to remarket the MOPPRS on the - -------------- Remarketing Date, then not later than the Business Day immediately preceding the Determination Date, the MOPPRS shall be subject to redemption at the option of the Company from the Remarketing Dealer, as a whole but not in part, as set forth in this Section. The Company shall notify the Remarketing Dealer and the Trustee, not later than the Business Day immediately preceding the Determination Date, as to whether the Company irrevocably elects to exercise its right to redeem the MOPPRS, in whole but not in part, from the Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. If the Issuer so elects, it shall redeem the MOPPRS by payment to the Remarketing Dealer as provided in the Remarketing Agreement. If the Issuer fails to elect, or elects not, to redeem the MOPPRS pursuant to this Section 5, the Remarketing Dealer will determine the Interest Rate to Maturity on the Determination Date as provided in Section 3(a) hereof. The "Optional Redemption Price" shall be the greater of (i) 100% of the principal amount of the MOPPRS and (ii) the Dollar Price, plus in either case accrued and unpaid interest from the Remarketing Date on the principal amount being redeemed to the date of redemption. If the Company elects to redeem the MOPPRS, it shall pay the redemption price therefor in same-day funds by wire transfer to an account designated by the Remarketing Dealer on the Remarketing Date. 6. Effect of Events of Default. If an Event of Default, as defined in the - ------------------------------- Indenture, shall occur and be continuing, the principal of the MOPPRS may be declared due and payable in the manner and with the effect provided in the Indenture. 7. Defeasance. Notwithstanding any provision to the contrary in the Indenture - -------------- or otherwise, prior to the Remarketing Date, neither the Company nor any of its subsidiaries or affiliates shall defease, purchase or otherwise acquire, or enter into any agreement to defease, purchase or otherwise acquire, any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer. 8. Maintenance in Book-Entry Form. Notwithstanding any provision to the - ---------------------------------- contrary set forth in the Indenture, the Company (i) shall use its best efforts to maintain the MOPPRS in book-entry form with DTC or any successor thereto and to appoint a successor depositary to the extent necessary to maintain the MOPPRS in book-entry form, and (ii) waives any discretionary right it otherwise has under the Indenture to cause the MOPPRS to be issued in certificated form. 9. Amendment and Modification. The tender and settlement procedures may be - ------------------------------ modified as provided in Section 3(b) above. In addition, 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 MOPPRS 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 MOPPRS. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the MOPPRS at the time Outstanding, on behalf of the Holders of all MOPPRS, 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 MOPPRS to waive, in certain circumstances, on behalf of all Holders of the MOPPRS, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this MOPPRS shall be conclusive and binding upon such Holder and upon all future Holders of this MOPPRS and of any MOPPRS 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 MOPPRS. 10. Obligation to Pay Principal and Interest. No reference herein to the - --------------------------------------------- Indenture and no provision of this MOPPRS 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 MOPPRS at the times, places and rate, and in the coin or currency, herein and in the Indenture prescribed. 11. Transfer and Exchange. As provided in the Indenture and subject to certain - -------------------------- limitations set forth therein, the transfer of this MOPPRS may be registered on the Security Register upon surrender of this MOPPRS 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 MOPPRS 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 MOPPRS of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. This MOPPRS 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 MOPPRS or if at any time DTC ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, if so required by applicable law or regulation, the Company shall appoint a successor depositary with respect to the MOPPRS. If (a) a successor depositary for the MOPPRS 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 MOPPRS advise DTC to cease acting as depositary for such MOPPRS, or (c) the Company, in its sole discretion, determines at any time that all MOPPRS (but not less than all) shall no longer be represented by such Global MOPPRS or MOPPRS, then the Company shall execute, and the Trustee shall authenticate and deliver, definitive MOPPRS of like series, rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such MOPPRS. The MOPPRS are issuable only in registered form without coupons and may be sold in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the MOPPRS of this series are exchangeable for a like aggregate principal amount of MOPPRS 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 MOPPRS 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 MOPPRS is registered as the owner hereof for all purposes, whether or not this MOPPRS be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. 12. Satisfaction and Discharge. The Indenture contains provisions whereby (i) - ------------------------------- the Indenture shall cease to be of further effect with respect to the MOPPRS (subject to the survival of certain provisions thereof), (ii) the Company may be discharged from its obligations with respect to the MOPPRS (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. Such provisions are subject to Section 7 hereof. 13. No Recourse. No recourse shall be had for the payment of the principal of - ---------------- or interest on this MOPPRS, 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. 14. Governing Law. THE INDENTURE AND THE MOPPRS 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. 15. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee - ------------------ on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the MOPPRS as a convenience to the Holders of the MOPPRS. No representation is made as to the correctness or accuracy of such CUSIP numbers as printed on the MOPPRS, and reliance may be placed only on the other identification numbers printed hereon. 16. Defined Terms. All terms used in this MOPPRS 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 - -------------------------------------------------------------------------------- (Please Print or Typewrite Name and Address including Zip Code of Assignee) - ------------------------------------------------------------------------------- the within MOPPRS of __________________________ and ___________________________does irrevocably constitute and appoint - -------------------------------------------------------------------------------- Attorney to transfer said MOPPRS on the books of the within-mentioned Company with full power of substitution in the premises. Dated: ------------------------ -------------------------------------------- -------------------------------------------- NOTICE: The signature to this assignment must correspond with the name as it appears on the first page of the within MOPPRS in every particular, without alteration or enlargement or any change whatever. EX-8.1 5 OPINION RE TAX MATTERS EXHIBIT 8.1 [LATHAM & WATKINS LETTERHEAD] June 8, 1998 Health Care Property Investors, Inc. 4675 MacArthur Court, 9th Floor Newport Beach, California 92660 Re: Health Care Property Investors, Inc. $200,000,000 6 7/8% MandatOry Par Put Remarketed Securities ----------------------------------------------------------- Ladies and Gentlemen: We have acted as special counsel to Health Care Property Investors, Inc., a Maryland corporation (the "Company"), in connection with the sale by the Company to Merrill Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc Montgomery Securities LLC, and Salomon Brothers Inc. (collectively, the "Underwriters") of $200,000,000 aggregate principal amount of the Company's 6 7/8% MandatOry Par Put Remarketed Securities due June 8, 2015, pursuant to (i) a registration statement on Form S-3 under the Securities Act of 1933 (the "1933 Act"), filed with the Securities and Exchange Commission (the "Commission") on June 18, 1997 (File No. 333-29485), as amended by pre-effective Amendment No. 1 thereto, filed with the Commission on June 26, 1997, and declared effective by the Commission on June 27, 1997 (as amended as of the date hereof and including each document incorporated by reference therein, the "Registration Statement"), (ii) a Prospectus dated September 19, 1997 (the "Base Prospectus"), as supplemented by the Prospectus Supplement dated June 3, 1998, filed with the Commission on June 4, 1998 pursuant to Rule 424(b) under the 1933 Act (the "Prospectus Supplement," and together with the Base Prospectus, the "Prospectus") and (iii) a purchase agreement dated June 3, 1998 between the Underwriters and the Company (the "Purchase Agreement"). You have requested our opinion concerning certain of the Federal income tax consequences to the purchasers of the securities described above in connection with the sale described above. This opinion is based on various facts and assumptions, including the facts set forth in the Registration Statement concerning the business, properties and governing documents of the Company. In our capacity as such counsel, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies. We are opining herein as to the effect on the subject transaction only of the federal income tax laws of the United States and we express no opinion with respect to the applicability thereto, or the effect thereon, of other federal laws, the laws of any state or other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state. Based upon the facts set forth in the Registration Statement, it is our opinion that the information in the Prospectus Supplement set forth under the caption "Certain United States Federal Income Tax Considerations," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by us and is correct in all material respects. No opinion is expressed as to any matter not discussed herein. This opinion is rendered to you as of the date of this letter, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Also, any variation or difference in the facts from those set forth in the Prospectus may affect the conclusions stated herein. This opinion is rendered only to you and is solely for your use in connection with the transactions set forth in the Registration Statement. This opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Latham & Watkins -----END PRIVACY-ENHANCED MESSAGE-----