<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- -------
<C> <S>
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.
</TABLE>
4
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
(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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Principal
Amount of
Underwriter Securities
----------- ------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith 57,500,000
Incorporated
Goldman, Sachs & Co. 57,500,000
------------
Total................................... $115,000,000
============
</TABLE>
26
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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: _____________________________
<PAGE>
[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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
