-----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, OcI6AgfhR5W6vlFPBYun5COv5GDsI7WCR54GLtaVO9kS5PdZBXB1CojpfC8sYdng dUf6685P6SMaxoHMY3O++g== 0000898430-96-000601.txt : 19960222 0000898430-96-000601.hdr.sgml : 19960222 ACCESSION NUMBER: 0000898430-96-000601 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19960221 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19960221 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: 1934 Act SEC FILE NUMBER: 001-08895 FILM NUMBER: 96523482 BUSINESS ADDRESS: STREET 1: 10990 WILSHIRE BLVD STE 1200 CITY: LOS ANGELES STATE: CA ZIP: 90024 BUSINESS PHONE: 3104731990 8-K 1 FORM 8-K As filed with the Securities and Exchange Commission on February 21, 1996 ================================================================================ 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: FEBRUARY 21, 1996 HEALTH CARE PROPERTY INVESTORS, INC. (Exact name of registrant as specified in its charter) MARYLAND 1-8895 33-0091377 (State or other jurisdiction of (Commission (I.R.S. Employer incorporation) File Number) Identification Number) 10990 WILSHIRE BOULEVARD, SUITE 1200 LOS ANGELES, CALIFORNIA 90024 (Address of principal executive offices) (Zip Code) ------------------ Registrant's telephone number, including area code: (310) 473-1990 ================================================================================ An Exhibit Index is on page 4 of this report. ITEM 5. OTHER EVENTS. On September 21, 1995, 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. 33-62811) under the Securities Act of 1933, as amended, (the "Registration Statement") relating to the public offering from time to time of up to $200,000,000 aggregate offering price of common stock, par value $1.00 per share, preferred stock, par value $1.00 per share and unsecured debt securities of the Company, which Registration Statement was declared effective on November 1, 1995. On February 13, 1996, the Company entered into a purchase agreement (the "Purchase Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce Fenner & Smith Incorporated and Goldman, Sachs & Co. relating to the sale of the Company's 6.5% Senior Notes due February 15, 2006. The Purchase Agreement is attached hereto and referenced as Exhibit 1.2 to the Registration Statement. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 1.2 Purchase Agreement. 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 "6.5% Senior Notes due February 15, 2006." 4.2 Form of 6.5% Senior Notes due February 15, 2006 described in Exhibit 4.1. 2 SIGNATURES Pursuant to the requirements of the Securities and Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: February 21, 1996 HEALTH CARE PROPERTY INVESTORS, INC. /s/ James G. Reynolds ------------------------------------ James G. Reynolds Executive Vice President and Chief Financial Officer 3 EXHIBIT INDEX
Exhibit - ------- 1.2 Purchase Agreement dated February 13, 1996 between the Company, Merrill Lynch & Co., Merrill Lynch, Pierce Fenner & Smith Incorporated and Goldman, Sachs & Co. 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 "6.5% Senior Notes due February 15, 2006." 4.2 Form of 6.5% Senior Notes due February 15, 2006 described in Exhibit 4.1.
4 EX-1.2 2 PURCHASE AGREEMENT EXHIBIT 1.2 ----------- $115,000,000 HEALTH CARE PROPERTY INVESTORS, INC. (a Maryland corporation) 6.5% Senior Notes due February 15, 2006 PURCHASE AGREEMENT ------------------ February 13, 1996 MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated Goldman, Sachs & Co. c/o MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated 10900 Wilshire Boulevard Los Angeles, California 90024 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") and Goldman, Sachs & Co. (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 $115,000,000 aggregate principal amount of the Company's 6.5% Senior Notes due February 15, 2006 (the "Securities"). The Securities are to be issued pursuant to an indenture dated as of September 1, 1993 (the "Indenture", which term as used herein includes any instrument establishing the form and terms of the Securities) between the Company and The Bank of New York, as trustee (the "Trustee"). The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 33-62811) and a related preliminary prospectus for the registration under the Securities Act of 1933, as amended (the "1933 Act") of common stock, par value $1.00 per share (the "Common Stock") preferred stock, par value $1.00 per share, and debt securities, including the Securities (collectively, the "Registered Securities"), which registration statement has been declared effective by the Commission and copies of which have heretofore been delivered to you. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such Registration Statement, in the form in which it was declared effective, as amended through the date hereof, including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, is hereinafter referred to as the "Registration Statement". The Company proposes to file with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") the Prospectus Supplement (as defined in Section 3(i) hereof) relating to the Securities and the prospectus dated November 1, 1995 (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 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. 2 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. Section 1. Representations and Warranties. (a) The Company represents and ------------------------------ warrants to each Underwriter as of the date hereof (such date being hereinafter referred to as the "Representation Date") as follows: (i) The Company meets the requirements for use of Form S-3 under the 1933 Act and the 1933 Act Regulations. The Registration Statement and the Base Prospectus, at the time the Registration Statement became effective and as of the Representation Date, complied and comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933 Act Regulations), the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and as of the Representation Date do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the time it is first provided to the Underwriters for such use) and at the Closing Time referred to in Section 2 hereof, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, -------- however, that the representations and 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 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"). 3 (ii) The documents incorporated or deemed to be incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, at the respective times the Registration and any amendments thereto became effective, at the Representation Date and at Closing Time, did not, do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iii) The accountants who certified the financial statements and supporting schedules included or incorporated by reference in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (iv) The financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; and, except as otherwise stated in the Registration Statement, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the Company's ratios of earnings to fixed charges included in the Prospectus under the caption "Ratio of Earnings to Fixed Charges" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. (v) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) except 4 for regular quarterly dividends on the Common Stock, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the Company is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Company and its subsidiaries considered as one enterprise in such state. (vii) Each subsidiary of the Company which is a significant subsidiary (each, a "Significant Subsidiary") as defined in Rule 405 of Regulation C of the 1933 Act Regulations has been duly organized and is validly existing as a corporation or partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has power and authority as a corporation or partnership, as the case may be, to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation or partnership, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each such corporate subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and all of the issued and outstanding partnership interests of each such subsidiary which is a partnership have been duly authorized (if applicable) and validly issued and are fully paid and 5 non-assessable and (except for other partnership interests described in the Prospectus) are owned by the Company, directly or through corporate subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (viii) The Company has at all times operated in such manner as to qualify as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"), and intends to continue to operate in such manner. (ix) Company has the requisite corporate power and authority to execute and deliver this Agreement and the Securities and to perform its obligations hereunder and thereunder; and, after giving effect to the sale of the Securities and the sale of any other of the Registered Securities to be issued prior to the delivery of the Securities, the aggregate amount of Securities which have been issued and sold by the Company will not exceed the aggregate amount of theretofore unsold Registered Securities. (x) Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject and in which the violation or default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement and the performance of the Indenture and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any applicable law, administrative regulation or administrative or court decree. 6 (xi) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which is required to be disclosed in the Prospectus (other than as disclosed therein), or which might result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement or the Indenture or any transaction contemplated hereby or thereby; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Prospectus, 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 the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so filed. (xii) No authorization, approval or consent of any court or governmental authority or agency is necessary in connection with the offering, issuance or sale of the Securities hereunder, except such as may be required under the 1933 Act, the 1933 Act Regulations, the 1939 Act and state securities laws. (xiii) This Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery by the Underwriters, will be a valid and legally binding agreement of the Company. (xiv) No material default or event of default with respect to any indebtedness for borrowed money (other than non-recourse obligations) of the Company or any of its subsidiaries entitling, or which, with notice or lapse of time or both, would entitle, the holders thereof to accelerate the maturity thereof, exists or will exist as a result of the execution and delivery of this Agreement or the Indenture, the issuance and sale of the Securities or the consummation of the transactions contemplated hereby or thereby. (xv) The Securities have been duly and validly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of the Indenture and this Agreement against payment of the consideration 7 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. (xvi) The Company and its subsidiaries have good title to all real property or interests in real property owned by it or any of them, in each case free and clear of all liens, encumbrances and defects except such as are described in the 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 materially adverse effect on the value of such real properties and interests in relation to the Company and its subsidiaries considered as one enterprise; and all leases to which the Company is a lessee relating to real property are valid and binding and no default exists or is continuing thereunder, and the Company enjoys peaceful and undisturbed possession under all such leases to which it is a party as lessee. 8 (xvii) The Company is not required to be registered under the Investment Company Act of 1940, as amended (the "1940 Act"). (xviii) The Company has complied with, and is and will be in compliance with, the provisions of that certain Florida act relating to disclosure of doing business with Cuba, codified as Section 517.075 of the Florida statutes, and the rules and regulations thereunder (collectively, the "Cuba Act") or is exempt therefrom. (xix) The Securities are currently rated "Baa1" by Moody's Investor's Service, Inc. and "BBB+" by Standard & Poor's Ratings Service. (b) Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. Section 2. Sale and Delivery to Underwriter; Closing. ----------------------------------------- (a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at 98.547% of the principal amount thereof, the principal amount of Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. (b) Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the office of Brown & Wood, 10900 Wilshire Boulevard, Los Angeles, California, or at such other place as shall be agreed upon by the Underwriters and the Company, at 8:00 A.M., Los Angeles time, on February 16, 1995 (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than ten business days after such date as shall be agreed upon by the Underwriters and the Company (such time and date of payment and delivery being herein called "Closing Time"). Payment shall be made to the Company by wire transfer of immediately available funds against delivery to the Underwriters of certificates for the Securities to be purchased by it. 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 Underwriter not later than 10:00 A.M. on the last business day prior to Closing Time in New York, New York. 9 Section 3. Covenants of the Company. The Company covenants with each ------------------------ Underwriter as follows: (a) The Company will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement or Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from qualification of the Securities under state securities or Blue Sky laws or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date hereof. (b) The Company will give the Underwriters notice of its intention to file or prepare any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriter 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 Underwriter 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 10 prospectus to which the Underwriter or counsel for the Underwriter shall reasonably object. (c) The Company will deliver to the Underwriters as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) as the Underwriters may reasonably request and will also deliver to the Underwriters as many conformed copies of the 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. (d) The Company will furnish to the Underwriters, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. (e) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (f) The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate; provided, however, that the Company -------- ------- 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. 11 (g) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds". (i) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. Section 4. Payment of Expenses. The Company will pay all expenses ------------------- incident to the performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (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 12 the reasonable fee and disbursements of counsel for the Underwriters. Section 5. Conditions of the Underwriters' Obligations. The obligations ------------------------------------------- of the Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions: (a) 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) shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to the Underwriters of such timely filing or transmittal. (b) At Closing Time the Underwriters shall have received: (1) The favorable opinion, dated as of Closing Time, of Latham & Watkins, counsel for the Company, in form and scope satisfactory to counsel for the Underwriters to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. (iii) The Indenture has been duly authorized, executed and delivered by the Company, and the Securities have been duly authorized for execution and delivery by the Company. (iv) The Securities are in due and proper form and when executed and authenticated in accordance with the terms of the Indenture and delivered pursuant to the provisions of this Agreement against payment of the consideration therefor, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and each holder of the Securities will be entitled to the benefits of the Indenture. 13 (v) The Indenture is the legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (vi) The Securities and the Indenture conform in all material respects to the respective descriptions thereof contained in the Prospectus. (vii) Texas HCP, Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; all of the issued and outstanding shares of capital stock of such subsidiary have been duly authorized and validly issued, and are fully paid and non-assessable and, to the best of such counsel's knowledge, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (viii) This Agreement has been duly authorized, executed and delivered by the Company. (ix) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (x) The Registration Statement, at the time it became effective and at the Representation Date, appeared on its face to comply as to form in all material respects with the requirements for registration statements on Form S-3 under the 1933 Act and the 1933 Act Regulations; it being understood that such counsel need express no opinion with respect to documents incorporated by reference therein except as set forth in paragraph (xii) below, the Form T-1 or the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Registration Statement. In passing upon the compliance as to form of the Registration Statement, such counsel may assume that the statements made and incorporated by reference therein are true, correct and complete. 14 (xi) Each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus (other than the financial statements, schedules and other financial and statistical data included or incorporated by reference therein, as to which no opinion need be rendered), at the time it was filed with the Commission, appeared on its face to comply as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. In passing upon compliance as to form of such documents, such counsel may assume that the statements made therein are true, correct and complete. (xii) The Indenture has been duly qualified under the 1939 Act. (xiii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Prospectus. (xiv) No authorization, approval, consent, decree or order of any court or governmental authority or agency is required for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the sale of the Securities hereunder, except such as may have been obtained or rendered, as the case may be, or as may be required under the 1933 Act, the 1933 Act Regulations, the 1939 Act or state securities laws (including real estate syndication laws). (xv) The issue and the sale of the Securities and the compliance by the Company with the provisions of this Agreement and the Indenture, and the consummation of the transactions therein contemplated, will not result in a breach or violation of any material term or provision of, or constitute a default under: (i) that certain Indenture dated as of April 1, 1989 between the Company and The Bank of New York, as Trustee, for Debt Securities; (ii) that certain Fiscal Agency Agreement dated as of November 8, 1993 between the Company and Chemical Bank, as Fiscal Agent, for 6% Convertible Subordinated Notes due 2000; and (iii) that certain Revolving Credit Agreement dated as of March 31, 1994 among the Company, The Bank of New York, Wells Fargo Bank, Kredietbank N.V., The Long-Term Credit Bank of Japan, Ltd., Nations Bank of Texas, N.A., Bank of Hawaii and Sanwa Bank of California; nor will such action result in any 15 violation of the provisions of the charter or by-laws of the Company or, to the best of such counsel's knowledge, result in any material violation of any statute or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that such counsel need express no opinion under federal securities laws except as expressly otherwise provided in this Section 5(b)(1), and no opinion under state securities laws (including real estate syndication laws) or any antifraud laws. (xvi) The Company is not required to be registered under the 1940 Act. (2) The favorable opinion, dated as of Closing Time, of Latham & Watkins, counsel for the Company, in form and scope satisfactory to counsel for the Underwriters and subject to customary assumptions, limitations and exceptions acceptable to counsel for the Underwriters, to the effect that: (i) the Company was organized in conformity with the requirements for qualification as a real estate investment trust and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code; and (ii) the information in the Prospectus under the caption "Certain Federal Income Tax Considerations to the Company", to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects. (3) The favorable opinion, dated as of Closing Time, of Edward J. Henning, General Counsel of the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that: (i) To the best of such counsel's knowledge and information, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the 16 earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (ii) To the best of such counsel's knowledge and information, each subsidiary of the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (iii) To the best of such counsel's knowledge and information, no material default exists in the due performance or observance by the Company or any of its subsidiaries of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein which would have a material adverse effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (iv) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (4) The favorable opinion, dated as of Closing Time, of Brown & Wood, counsel for the Underwriters, with respect to the matters set forth in (i), (iii) to (vi), (viii) to (x), and (xii), inclusive, of subsection (b)(1) of this Section. 17 (5) In giving their opinions required by subsections (b)(1) and (b)(4), respectively, of this Section, Latham & Watkins and Brown & Wood shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the Representation Date, in which case at the time it is first provided to the Underwriters for such use) or at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Latham & Watkins and Brown & Wood may rely, to the extent recited therein, (A) as to all matters of fact, upon certificates and written statements of officers of the Company, (B) as to the qualification and good standing of the Company to do business in any state or jurisdiction, upon certificates of appropriate government officials and (C) as to matters involving the laws of the State of Maryland, upon the opinion of Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to counsel for the Underwriters. (c) At Closing Time there shall not have been, since the date hereof or since the respective dates as of which information is given in the 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 18 initiated or, to the best knowledge and information of such officer, threatened by the Commission. As used in this Section 5(c), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Securities. (d) At the time of execution of this Agreement, the Underwriters shall have received from Arthur Andersen LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, and substantially in the same form as the draft letter previously delivered to and approved by the Underwriters. (e) At Closing Time the Underwriters shall have received from 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 days prior to Closing Time. (f) At Closing Time counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notifying the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Section 6. Indemnification. (a) The Company agrees to indemnify and hold --------------- harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue 19 statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of counsel chosen by 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 through Merrill Lynch 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, 20 and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, liability, claim, damage or expense. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by such Underwriter through 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). (c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (d) For purposes of this Section 6, all references to the Registration Statement, any preliminary prospectus, preliminary prospectus supplement or the Prospectus, or any amendment or supplement to any of the foregoing, shall be deemed to include, without limitation, any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR. Section 7. Contribution. In order to provide for just and equitable ------------ contribution in circumstances in which the indemnity agreement provided for in Section 6 hereof is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and one or more of the Underwriters, as incurred, in such 21 proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus Supplement bears to the initial public offering price appearing thereon and the Company is responsible for the balance; provided, however, that -------- ------- no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For the purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. Section 8. Representations, Warranties and Agreements to Survive Delivery. -------------------------------------------------------------- All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto or thereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriter or any controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. Section 9. Termination 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 the effect of which on the financial markets of the United States is such as to make it, in the judgement of the Underwriters, impracticable to market the Securities or enforce contracts for the sale of the Securities, (iii) if trading in the securities of the Company has been suspended by the Commission, or if trading generally on either the American Stock Exchange or the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium has been declared by either federal, New York or California authorities, or (iv) if any of the nationally recognized securities rating agencies specified in Section 1(a)(xix) hereof shall have publicly announced that it has (A) placed the Securities on what is commonly termed a "watch list" for possible downgrading or (B) downgraded the Securities. As used in this Section 9(a), the term "Prospectus" means the 22 Prospectus in the form first used to confirm sales of the Securities. (b) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and 8 shall remain in effect. Section 10. Default by One or More of the Underwriters. If any Underwriter ------------------------------------------ shall fail at Closing Time to purchase the Securities which it is obligated to purchase hereunder (the "Defaulted Securities"), the remaining Underwriter (the "Non-Defaulting Underwriter") 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 Underwriter shall have not completed such arrangements within such 24-hour period, then this Agreement shall terminate without liability on the part of the 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 Underwriter 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. Section 11. Notices. All notices and other communications hereunder shall ------- be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of written telecommunication. Notices to the Underwriters shall be directed to the Representative 10900 Wilshire Boulevard, Suite 900, Los Angeles, California 90024, Attention: James F. Flaherty III, and notices to the Company shall be directed to it at 10990 Wilshire Boulevard, Suite 1200, Los Angeles, California 90024, attention of Kenneth B. Roath, President and Chief Executive Officer, with a copy to Pamela Kelly at Latham & Watkins, 633 West Fifth Street, Los Angeles, California 90071. Section 12. Parties. This Agreement shall each 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 23 of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and said officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase. Section 13. Governing Law and Time. This Agreement shall be governed by ---------------------- and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in such State. Unless stated otherwise, all specified times of day refer to New York City time. 24 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriter and the Company in accordance with its terms. Very truly yours, HEALTH CARE PROPERTY INVESTORS, INC. By: ____________________________ Title: CONFIRMED AND ACCEPTED, as of the date first above written: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED GOLDMAN, SACHS & CO. By Merrill Lynch, Pierce, Fenner & Smith Incorporated By:__________________________________ Authorized Signatory 25 SCHEDULE A
Principal Amount of Underwriter Securities ----------- ------------ Merrill Lynch, Pierce, Fenner & Smith 57,500,000 Incorporated Goldman, Sachs & Co. 57,500,000 ------------ Total................................... $115,000,000 ============
26 EX-4.1 3 OFFICERS CERTIFICATE EXHIBIT 4.1 ----------- HEALTH CARE PROPERTY INVESTORS, INC. Officers' Certificate --------------------- James G. Reynolds and Devasis Ghose do hereby certify that we are the duly elected Executive Vice President and Chief Financial Officer, and Senior Vice President -- Finance and Treasurer, 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 on July 20, 1995 and October 19, 1995 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: (i) the title of such series of Securities shall be 6.5% Senior Notes due February 15, 2006 (referred to herein as the "Notes"); (ii) the Notes which may be authenticated and delivered under the Indenture shall be limited to $115,000,000 aggregate principal amount (except as otherwise provided in Sections 304, 306, 906 or 1107 of the Indenture); (iii) the Notes shall be issued as Registered Securities only, without coupons, and beneficial interests in the Notes 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; (iv) the Notes shall be issued in the form of a permanent global certificate dated February 16, 1996; (v) the principal amount of the Notes shall be payable on February 15, 2006; (vi) interest on the Notes shall accrue at a fixed rate of interest as more fully described in the attached form of Notes; the Notes will bear interest from February 16, 1996, and such interest will be payable semi- annually on February 15 and August 15 of each year, commencing on August 15, 1996 (each, an "Interest Payment Date"); the Record Dates with respect to the Notes shall be each February 1 and August 1, respectively, whether or not a Business Day, preceding the relevant Interest Payment Date; 1 interest on the Notes will be calculated on the basis of a 360-day year of twelve 30-day months; (vii) principal and interest payable with respect to the Notes 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; (viii) the Notes are not subject to redemption, in whole or in part, at the option of the Company and the Notes are not subject to any sinking fund; and (ix) the Notes shall be issued in the form of one Book-Entry Security, and the Depository for such Notes 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); 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 Notes 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 16th day of February, 1996. /s/ James G. Reynolds ------------------------------------ James G. Reynolds Executive Vice President and Chief Financial Officer /s/ Devasis Ghose ------------------------------------ Devasis Ghose Senior Vice President -- Finance and Treasurer 2 EXHIBIT A-1 CERTIFICATE OF CORPORATE SECRETARY OF HEALTH CARE PROPERTY INVESTORS, INC. I, Edward J. Henning, do hereby certify that I am the duly elected Corporate Secretary of Health Care Property Investors, Inc., a Maryland corporation (the "Company"), and further certify as follows: Attached hereto as Exhibit I are true and correct copies of the minutes (or pertinent excerpts therefrom) of meetings of the Board of Directors of the Company containing resolutions, duly adopted by the Board of Directors of the Company at a meeting duly held pursuant to the Amended and Restated Bylaws of the Company on July 20, 1995; the resolutions set forth in said Exhibit I constitute all resolutions of said Board of Directors or any committee thereof with respect to the authorization, issuance and sale by the Company of up to $200,000,000 aggregate offering amount of its common stock, par value $1.00 per share, preferred stock, par value $1.00 per share, and unsecured debt securities, and related matters, and such resolutions have not been amended, modified, annulled or revoked, and are in full force and effect; and the instruments referred to in said resolutions were executed pursuant thereto and in compliance therewith. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Company this 21st day of September, 1995. [Seal] /s/ Edward J. Henning --------------------------------------- Edward J. Henning Corporate Secretary I, James G. Reynolds, Executive Vice President and Chief Financial Officer of Health Care Property Investors, Inc., hereby certify that Edward J. Henning is the duly elected, qualified and acting Corporate Secretary of Health Care Property Investors, Inc. and that the signature appearing above is his genuine signature. IN WITNESS WHEREOF, I have hereunto signed my name. Dated: September 21, 1995 /s/ James G. Reynolds --------------------------------------- James G. Reynolds Executive Vice President and Chief Financial Officer EXHIBIT I --------- PUBLIC OFFERING OF SECURITIES WHEREAS, the Board of Directors, after having discussed the terms of the "Securities Offering" (as defined below), believes it to be advisable and in the best interests of this Corporation to undertake a public offering of debt securities (the "Debt Securities"), common stock (the "Common Stock") and/or preferred stock (the "Preferred Stock") (collectively, the "Securities Offering") from time to time of up to $200,000,000 aggregate amount of its securities (the "Securities"); WHEREAS, this Board of Directors believes it to be advisable and in the best interests of this Corporation that the executive officers of this Corporation promptly cause to be prepared a Universal Shelf Registration Statement on Form S-3 (the "Registration Statement"), including therein a prospectus (the "Prospectus"), for the purpose of registering the Securities under the Securities Act of 1933, as amended (the "Act"), for sale to the public; The Registration Statement - -------------------------- RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed, by and on behalf of this Corporation, and in its name, to cause to be prepared and to execute and cause to be filed with the Securities and Exchange Commission (the "Commission") the Registration Statement for the purpose of registering under the Act the Securities, and similarly to execute and file any and all amendments or supplements to the Registration Statement which, in his sole discretion, appear to be necessary or appropriate; each such amendment or supplement is to be in such form as the Chairman or any executive officer of this Corporation executing same on its behalf shall approve, as conclusively evidenced by his execution thereof; RESOLVED FURTHER, that for purposes of registering the Securities under the Act, the Chairman of this Corporation is hereby appointed as this Corporation's agent for service of process; RESOLVED FURTHER, that the Chairman and executive officers of this Corporation be, and each of them hereby is, authorized and directed to execute and deliver such other documents and to take such other actions as the Chairman or any executive officer may deem necessary or appropriate in furtherance of said registration of the Securities; Distribution Agreement - ----------------------- RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed, by and on behalf of this Corporation, and in its name, to negotiate, execute and deliver (i) a Distribution Agreement (the "Distribution Agreement") between this Corporation and Merrill Lynch & Co. and Goldman, Sachs & Co., as Agents, and such other agents as the Chairman of the Corporation shall approve, providing for the distribution of the Corporation's Medium-Term Notes (the "Notes") through the Agents, with modifications therein as the Chairman or any executive officer executing same deems appropriate, his approval to be evidenced by his execution thereof; RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized to act on behalf of this Corporation in all matters relating to the distribution and sale of the Notes to be issued by this Corporation for the consideration and upon the terms and conditions to be provided in the Distribution Agreement and in all matters relating to the performance of this Corporation under the Distribution Agreement and to execute and deliver all such documents and instruments and to take all such action as may appear necessary or appropriate in connection therewith; Purchase Agreements - ------------------- RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed, by and on behalf of this Corporation, and in its name, to negotiate, execute and deliver one or more purchase agreements (the "Purchase Agreements"), between this Corporation and Merrill Lynch & Co., Goldman, Sachs & Co., as Underwriter, and such other underwriters as the Chairman of the Corporation shall approve, providing for the sale of the Securities, with modifications therein as the Chairman or any executive officer executing same deems appropriate, his approval to be evidenced by his execution thereof, and that the Chairman and each executive officer of this Corporation is hereby authorized to act on behalf of this Corporation in all matters relating to the sale of the Securities to be issued by this Corporation for the consideration and upon the terms and conditions to be provided in the Purchase Agreements and in all matters relating to the performance of this Corporation under the Purchase Agreements and to execute and deliver all such documents and instruments and to take all such action as may appear necessary or appropriate in connection therewith; Indenture - --------- RESOLVED FURTHER, that the Notes be issued under, and pursuant to, that certain indenture dated as of September 1, 1993 (the "Indenture") and entered into between the Corporation and The Bank of New York, as trustee; RESOLVED FURTHER, that the executive officers of this Corporation be, and each hereby is, authorized and directed, by and on behalf of the Corporation, and in its name, to determine such additional and amended provisions of the Indenture as he deems appropriate, his approval thereof to be evidenced by his execution of a supplement to the Indenture, and to execute and deliver all such documents and instruments and to take all such actions as may appear necessary or appropriate in connection therewith; and RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each hereby is, authorized and directed, by and on behalf of the Corporation, and in its name, to determine the terms of the Notes pursuant to Section 301 of the Indenture, his approval thereof to be evidenced by his execution of an officer's certificate, and to execute and deliver all such documents and instruments and to take all such actions as may appear necessary or appropriate in connection therewith. New York Stock Exchange Listing - ------------------------------- RESOLVED FURTHER, that the Common Stock to be sold and issued by the Corporation pursuant to the Registration Statement authorized by the foregoing resolutions, if deemed appropriate by the executive officers of this Corporation, be listed on the New York Stock Exchange ("NYSE") and that the Chairman and each executive officer of this Corporation, with the assistance of the Corporation's counsel, be, and each hereby is, authorized and directed to prepare, execute and file with the NYSE, in the name and on behalf of this Corporation, a listing application, including any supporting documentation required to be submitted with or in support of such application for the listing of the Common Stock on the NYSE; RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed to execute all such other actions as may appear necessary or appropriate in connection with said listing of this Corporation's Common Stock; State Blue sky or Securities Laws - --------------------------------- RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed, by and on behalf of this Corporation, and in its name, to take any and all actions which they deem necessary or advisable in order to effect the registration or qualification (or exemption thereof) of the Securities for issue, offer, sale or trade under the Blue Sky or securities laws of any of the states of the United States of America or other appropriate jurisdictions, and in connection therewith to execute, acknowledge, verify, deliver, file or cause to be published any applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, and to take any and all further action which they may deem necessary or advisable to maintain any such registration or qualification for as long as they deem necessary or as required by the Underwriter or the Agent of such securities; RESOLVED FURTHER, that there is hereby adopted and incorporated herein by reference, the full text of any resolution and resolutions in statutory or regulatory form that may be required by any state or other jurisdictional authority in connection with any such registration or qualification, and the Secretary or any Assistant Secretary of this Corporation is hereby authorized and empowered to certify to any such state authority that any such form of resolution required by such authority has been adopted, and there is hereby adopted the following resolution under the Uniform Securities Act: "RESOLVED, that it is desirable and in the best interest of this Corporation that its securities be qualified or registered for sale in various states; that the President or any Vice President and the Secretary hereby is authorized to determine the states in which appropriate action shall be taken to qualify or register for sale all or such part of the securities of this Corporation as said executive officers may deem advisable; that such executive officers are hereby authorized to perform on behalf of this Corporation any and all such acts as they may deem necessary or advisable in order to comply with the applicable laws of any such states, and in connection therewith to execute and file all requisite papers and documents, including, but not limited to, applications, reports, surety bonds, irrevocable consents and appointments of attorneys for service of process; and the execution by such executive officers of any such paper or document or the doing by them of any act in connection with the foregoing matters shall conclusively establish their authority therefor from this Corporation and the approval and ratification by this Corporation of the papers and documents so executed and the action so taken."; Delegation of Power - ------------------- RESOLVED FURTHER, that except as to the express terms which have been fixed by these resolutions, or which shall be fixed as provided by these resolutions, this Board of Directors hereby delegates to the Chief Executive Officer, Chief Financial Officer and/or the Secretary of this Corporation the power and authority to be exercisable at any time and from time to time to establish such terms and to make such changes to the Securities Offering, including but not limited to, the establishing of the principal amount of Securities to be issued, up to a maximum of $200,000,000 in the aggregate, and the establishing of the principal amount, interest rate, terms, conditions and provisions of the Debt Securities, which may be issued in various series or classes having different principal amounts, interest rates, terms, conditions and provisions, and to establish or modify any terms of the Securities, or any other document pertaining to the Securities Offering, as in his discretion may be advisable, and to cause such changes to be reflected in the final form of the Prospectus and any supplement relating thereto; RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed to cause this Corporation to pay any and all expenses and fees arising in connection with the sale of the Securities, the registration of such Securities under the Act, the filing of any application under the Securities or Blue Sky Laws of the various states and jurisdictions of the United States, and otherwise in connection with these resolutions; RESOLVED FURTHER, that the Chairman and each executive officer of this Corporation be, and each of them hereby is, authorized and directed to take all such further action, execute and deliver all such further documents and instruments and to make and effect all such filings, applications and registrations, by and on behalf of this Corporation, and in its name, and under its corporate seal or otherwise, as in their judgment shall be necessary or appropriate in order to fully carry out the intents and accomplish the purposes of these resolutions. CERTIFICATE OF CORPORATE SECRETARY OF HEALTH CARE PROPERTY INVESTORS, INC. I, Edward J. Henning, do hereby certify that I am the duly elected Corporate Secretary of Health Care Property Investors, Inc., a Maryland corporation (the "Corporation"), and further certify as follows: Attached hereto as Exhibit I are true and correct copies of the minutes (or pertinent excerpts therefrom) of meetings of the Board of Directors of the Corporation containing resolutions, duly adopted by the Board of Directors of the Corporation at a meeting duly held pursuant to the Amended and Restated Bylaws of the Corporation on October 19, 1995; the resolutions set forth in said Exhibit I constitute all resolutions of said Board of Directors or any committee thereof with respect to the authorization, issuance and sale by the Corporation of up to $125 million principal amount of senior notes and certain related matters, and such resolutions have not been amended, modified, annulled or revoked, and are in full force and effect; and the instruments referred to in said resolutions were executed pursuant thereto and in compliance therewith. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Corporation this 17th day of January, 1996. [Seal] /s/ Edward J. Henning --------------------------------------- Edward J. Henning Corporate Secretary I, James G. Reynolds, Executive Vice President and Chief Financial Officer of Health Care Property Investors, Inc., hereby certify that Edward J. Henning is the duly elected, qualified and acting Corporate Secretary of Health Care Property Investors, Inc. and that the signature appearing above is his genuine signature. IN WITNESS WHEREOF, I have hereunto signed my name. Dated: January 17, 1996 /s/ James G. Reynolds --------------------------------------- James G. Reynolds Executive Vice President and Chief Financial Officer EXHIBIT I --------- Prospectus Supplement --------------------- WHEREAS, pursuant to resolutions adopted by the Board of Directors of the Corporation on July 20, 1995 (the "July 20, 1995 Resolutions"), the Board of Directors authorized the filing of the Registration Statement on Form S-3 (File No. 33-62811) (the "Registration Statement") and the issuance and sale thereunder of up to $200 million aggregate amount of debt securities, common stock and/or preferred stock (collectively the "Securities"); WHEREAS, the Board of Directors desires to authorize the issuance and sale in an offering to be made pursuant to the Securities Act of 1933, as amended (the "Securities Act") of up to $125 million principal amount of Senior Notes (the "Notes") on behalf of the Corporation; WHEREAS, the Board of Directors desires to authorize the issuance and sale of the Notes, with the principal amount, interest rate, maturity date, redemption prices, terms and conditions and covenants, of the Notes, and the price to investors and the discount to the Underwriters (as defined below) of, and other specified terms relating to the Notes to be negotiated by the executive officers of the Corporation; WHEREAS, the Board of Directors desires that a purchase agreement (the "Purchase Agreement") be entered into by and between the Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and Goldman, Sachs & Co. ("Goldman Sachs" and together with Merrill Lynch, the "Underwriters"), engaging the Underwriters to serve as, among other things, underwriters for the Corporation in connection with the public offering (the "Offering") of the Notes; and WHEREAS, the Board of Directors deems it desirable and in the best interest of the Corporation to issue and sell the Notes pursuant to the Offering and to enter into the Purchase Agreement; NOW THEREFORE it is: RESOLVED, that the executive officers of this Corporation be, and each hereby is, authorized and directed, for and on behalf of this Corporation, and in its name, to promptly prepare or cause to be prepared, and to file or cause to be filed with the Securities and Exchange Commission (the "Commission") a Prospectus Supplement and Prospectus (the "Prospectus Supplement and Prospectus") pursuant to Rule 424(b) under the Securities Act in connection with the Offering of up to $125 million principal amount of the Notes of the Corporation, but not more than $200 million of Securities as referred to in the Registration Statement previously filed with and declared effective by the Commission, and to file or cause to be filed any required exhibits or other documents on a Current Report on Form 8-K pursuant to the Securities Exchange Act of 1934, as amended, or such other form as may be specified by the Commission; and RESOLVED FURTHER, that the executive officers of this Corporation be, and each hereby is, authorized and directed to execute and deliver such other documents and to take such other actions as such executive officer or officers may deem necessary or appropriate in furtherance of the preparation and filing of the Prospectus Supplement and Prospectus. Issuance of Notes ----------------- RESOLVED FURTHER, that this Corporation be, and it hereby is, authorized to issue and sell up to $125 million principal amount of Notes, pursuant to the Purchase Agreement and having a maturity not to exceed ten (10) years from the date of issue and not less than seven (7) years from the date of issue, to be delivered pursuant to Section 301 of the Indenture on the date of and in connection with the commencement for the Notes (the "Officers' Certificate") at the date of issuance of the Notes, the form of the Notes to be as set forth in the Officers' Certificate to be delivered on the date of and in connection with the commencement for the Notes; and RESOLVED FURTHER, that the executive officers of the Corporation be, and each hereby is, authorized and directed, by and on behalf of the Corporation and in its name, (i) to enter into the Purchase Agreement between the Corporation and the Underwriters providing for the purchase of the Notes by the Underwriters, and (ii) to issue and sell the Notes pursuant to and to perform the obligations of the Corporation under the Purchase Agreement and providing for the sale of the Notes; with modifications therein as the executive officers executing the same deem appropriate, his approval and determination to be evidenced by his execution thereof, and, each such executive officer is authorized and directed on behalf of the Corporation and in its name, to consummate the transactions contemplated thereby; and RESOLVED FURTHER, that the executive officers of this Corporation be, and each hereby is, authorized to act on behalf of this Corporation in all matters relating to the issuance and sale of the aforesaid Notes, and in all matters relating to the performance by this Corporation under the Purchase Agreement and to execute and deliver all such documents and instruments and to take all such action as may appear necessary or appropriate in connection therewith. Indenture --------- RESOLVED FURTHER, that the Notes be issued under, and pursuant to, that certain indenture dated as of September 1, 1993 (the "Indenture") and entered into between the Corporation and The Bank of New York, as trustee; RESOLVED FURTHER, that the executive officers of this Corporation be, and each hereby is, authorized and directed, by and on behalf of the Corporation, and in its name, to determine such additional and amended provisions of the Indenture as he deems appropriate, his approval thereof to be evidenced by his execution of a supplement to the Indenture, and to execute and deliver all such documents and instruments and to take all such actions as may appear necessary or appropriate in connection therewith; and RESOLVED FURTHER, that the executive officers be, and each hereby is, authorized and directed, by and on behalf of the Corporation, and in its name, to determine the terms of the Notes pursuant to Section 301 of the Indenture, his approval thereof to be evidenced by his execution of the Officer's Certificate, and to execute and deliver all such documents and instruments and to take all such actions as may appear necessary or appropriate in connection therewith. General ------- RESOLVED FURTHER, that for the purposes of giving effect to the foregoing resolutions, each of the executive officers of this Corporation be, and each hereby is, authorized and empowered to take such additional actions and to execute and deliver such other documents and instruments as such executive officer or officers may deem necessary or desirable in furtherance of the intents and purposes of these resolutions; and RESOLVED FURTHER, that all other actions heretofore taken by any executive officer of the Corporation in connection with the Registration Statement or the offering of the Notes be, and they hereby are, authorized, approved, ratified and confirmed; and RESOLVED FURTHER, that the July 20, 1995 Resolutions and all actions taken, all instruments and documents executed, including, but not limited to, the Purchase Agreement and the Indenture, and all Securities sold pursuant to the July 20, 1995 Resolutions be and they hereby are authorized, approved, ratified and confirmed and these resolutions are in addition to such Resolutions, not in place thereof. EX-4.2 4 FORM OF 6.5% SENIOR NOTES EXHIBIT 4.2 ----------- SPECIMEN REGISTERED PRINCIPAL AMOUNT NO. $115,000,000 CUSIP NO. 421915 AD1 HEALTH CARE PROPERTY INVESTORS, INC. 6.5% SENIOR NOTES DUE FEBRUARY 15, 2006 UNLESS THIS NOTE 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 NOTE 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 NOTES IN CERTIFICATED FORM, THIS NOTE 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 One Hundred and Fifteen Million Dollars ($115,000,000) on February 15, 2006, and to pay interest thereon from February 16, 1996, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on February 15 and August 15 of each year (each, an "Interest Payment Date"), commencing August 15, 1996, at the rate of 6.5% per annum, until the entire principal amount hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Holder in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 1 or August 1 whether or not a Business Day (as defined in the Indenture), as the case may be, next preceding such 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 Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Payments of principal, premium, if any, and interest in respect of this Note will be made by the Company in immediately available funds. Payment of the principal of and interest on this Note 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 on the Security Register or by transfer to an account maintained by the payee with a bank located in the United States; and, provided, further, that so long as this Note is registered in the name of DTC or its nominee, principal and interest payments will be paid to DTC or its nominee, as the Holder, by wire transfer in same-day funds. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee by manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal this 16th day of February, 1996. Health Care Property Investors, Inc., a Maryland corporation By: _____________________________ Name: James G. Reynolds Title: Executive Vice President and Chief Financial Officer Attest: By: _____________________________ 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: ________________________________ Authorized Signatory Dated: _____________________________ [REVERSE OF SECURITY] This Note is one of a duly authorized issue of securities of the Company (herein called the "Notes"), 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 Notes), 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 Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is the duly authorized series designated as the "6.5% Senior Notes due February 15, 2006," limited (subject to exceptions provided in the Indenture) in aggregate principal amount to $115,000,000. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Notes are not subject to redemption, in whole or in part, at the option of the Company and the Notes are subject to any sinking fund. As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 25% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of the Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any interest on or after the respective due dates expressed herein. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the aggregate principal amount of the Outstanding Notes to waive, in certain circumstances, on behalf of all Holders of the Notes, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and interest on, this Note at the times, places and rate, and in the coin or currency, herein and in the Indenture prescribed. As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Security Register upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for the purpose in any place where the principal of and interest on this Note are payable, duly endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more new Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. This Note may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling or unable to continue as depositary for the Notes or if at any time DTC ceases to be a clearing agency registered under the 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 Notes. If (a) a successor depositary for the Notes is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness, inability or ineligibility, (b) an Event of Default has occurred and is continuing and the beneficial owners representing a majority in principal amount of the Notes advise DTC to cease acting as depositary for such Notes, or (c) the Company, in its sole discretion, determines at any time that all Notes (but not less than all) of this series shall no longer be represented by such Global Note or Notes, then the Company shall execute, and the Trustee shall authenticate and deliver, definitive Notes of like series, rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Note or Notes. The Notes are issuable only in registered form without coupons and may be sold in denominations of $1,000 and nay integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series in authorized denominations as requested by the Holders surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of the Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. The Indenture contains provisions whereby (i) the Indenture shall cease to be of further effect with respect to the Notes (subject to the survival of certain provisions thereof), (ii) the Company may be discharged from its obligations with respect to the Notes (subject to certain exceptions), or (iii) the Company may be released from its obligations under specified covenants and agreements in the Indenture, in each case if the Company satisfies certain conditions provided in the Indenture. No recourse shall be had for the payment of the principal of or interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any past, present or future stockholder, employee, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. THE INDENTURE AND THE NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF CALIFORNIA, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the correctness or accuracy of such CUSIP numbers as printed on the Notes, and reliance may be placed only on the other identification numbers printed hereon. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ASSIGNMENT FORM FOR VALUE RECEIVED, THE UNDERSIGNED HEREBY SELLS, ASSIGNS AND TRANSFERS TO PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ................................................................................ ................................................................................ (Please Print or Typewrite Name and Address including Zip Code of Assignee) ................................................................................ the within Note of ________________________ and ________________________ hereby does irrevocably constitute and appoint ................................................................................ Attorney to transfer said Note on the books of the within-named 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 Note in every particular, without alteration or enlargement or any change whatever. -----END PRIVACY-ENHANCED MESSAGE-----