Fiscal Agency Agreement 11/8/93

EXHIBIT 10.40


EXECUTION COPY ________________________________________________________________________________


FISCAL AGENCY AGREEMENT


between


HEALTH CARE PROPERTY INVESTORS, INC.,


Issuer


and


CHEMICAL BANK,


Fiscal Agent


__________________________


Dated as of


November 8, 1993


__________________________


U.S. $100,000,000


6% Convertible Subordinated Notes Due 2000


________________________________________________________________________________


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FISCAL AGENCY AGREEMENT dated as of November 8, 1993 between HEALTH
CARE PROPERTY INVESTORS, INC., a corporation duly organized and existing
under the laws of the State of Maryland (the "Issuer"), and CHEMICAL BANK,
a banking corporation incorporated under the laws of the State of New York.


1. Pursuant to a Subscription Agreement dated October 25, 1993 (the "Subscription Agreement") between the Issuer and Merrill Lynch International Limited, Alex Brown & Sons Incorporated and Natwest Securities Limited (all of the foregoing being hereinafter referred to as the "Managers"), the Issuer has agreed to issue U.S. $100,000,000 principal amount of its 6% Convertible Subordinated Notes due 2000 (the "Notes"), which amount includes $13,000,000 aggregate principal amount of Notes issued pursuant to the over- allotment option granted to the Managers pursuant to Clause 1(a) of the Subscription Agreement.


2. The Issuer hereby appoints Chemical Bank, at present having its Corporate Trust Office (as hereinafter defined) at 450 West 33rd Street, New York, New York 10001, as the fiscal agent in respect of the Notes and, at its address set forth in Section 5(a), as the agent of the Issuer for the purpose of keeping registration books with respect to the Registered Notes (as hereinafter defined) in accordance with Section 5, all upon the terms and subject to the conditions set forth herein and in the Notes. Chemical Bank, and, subject to Section 11, any successor fiscal agent are herein called the "Fiscal Agent." The Fiscal Agent shall have the powers and authority granted to and conferred upon it herein and in the Notes.


3. (a) Except as provided in Sections 4(a) and 4(e), the Notes will be issued in bearer form, the face of which being substantially in the form of Exhibit A-1 hereto ("Bearer Notes"), with attached interest coupons, the face of which being substantially in the form of Exhibit C hereto ("Coupons"), and in fully registered form, the face of which being substantially in the form of Exhibit A-2 hereto ("Registered Notes"). All Notes (other than the Global Note (as defined in Section 4(a)) shall contain the Terms and Conditions ("Terms"), substantially as set forth in Exhibit B hereto, and the conversion notice form, substantially in the form of Exhibit G. The authorized denominations of the Notes shall be as provided in the Terms and in this Agreement. As used herein, "Holder" of a Note and "Noteholder," or the "Holder" of a Coupon, as the case may be, means (i) in the case of a Bearer Note or Coupon, the bearer thereof and (ii) in the case of a Registered Note, the registered owner thereof as shown in the Note Register (as hereinafter defined); provided that, for so long as any Notes are represented by the Global Note, the term "Holder" and "Noteholder," when used in reference to such Notes, shall mean, unless the context shall


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otherwise require, each person who is at the time shown on the records of Euroclear or Cedel (as hereinafter defined), as the case may be, as the owner of a particular principal amount of such Notes (with respect to which any certificate or other documents issued by Euroclear or Cedel, as the case may be, as to the principal amount of such Notes held for the account of any such person shall be conclusive and binding for such purpose.) As used in this Agreement and the Securities, the term "person" means, unless the context shall otherwise require, any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.


(b) Bearer Notes, the Global Note and the initial DTC Note (as defined in Section 4(e)) each shall be dated November 8, 1993. Each Registered Note shall be dated the date of its authentication.


(c) The Notes (including the Global Note and the DTC Notes) and Coupons shall be executed on behalf of the Issuer by two officers of the Issuer including its President or any Vice President, and its Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary, so long as such persons shall be duly authorized at the time of such execution (any such person listed above being referred to as an "Authorized Officer" and any certificate signed by such authorized officer and delivered to the Fiscal Agent being referred to as an "Officer's Certificate"). Any such signature may be in facsimile and may be imprinted or otherwise reproduced. In case any person who shall have executed any Note (including the Global Note or any DTC Note) or Coupon shall cease to hold the office by virtue of which such person so executed such Note or Coupon before such Note (or the Note to which such Coupon appertained) shall be authenticated and delivered by the Fiscal Agent or disposed of by the Issuer, such Note may nevertheless be authenticated and delivered or disposed of as though such person had not ceased to be an Authorized Officer; and any Note or Coupon may be executed on behalf of the Issuer by such person or persons as, at the date of execution thereof, shall be duly authorized by the Issuer for such purpose, although at the date hereof any such person was not an Authorized Officer. Any such signature may be that of a duly authorized attorney-in-fact.


(d) The Fiscal Agent is authorized, upon receipt of the Notes executed on behalf of the Issuer, to authenticate Notes in the aggregate principal amount of U.S. $100,000,000 and to deliver said Notes to or upon the order of the Issuer signed by an Authorized Officer. Thereafter, the Fiscal Agent is authorized to authenticate and deliver Notes in accordance with the provisions set forth herein and in the Notes. Any request for authentication of Notes pursuant to paragraph 9(a) of the Terms shall be in writing and signed by an Authorized Officer of the Issuer.


4. (a) The Notes (other than the DTC Notes issued pursuant to Section 4(e) hereof) will initially be issued in the form of a single temporary global Note (the "Global Note") in bearer form, without interest coupons or conversion rights, substantially in the form of Exhibit D hereto. The Global Note shall be authenticated by the Fiscal Agent upon the same conditions, in substantially the same manner and with the same effect as the definitive Notes. Such Global Note shall be delivered to a common depository (the "Common Depositary") in London for Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") on the date of payment and delivery of the Notes, being November 8, 1993 (the "Settlement Date"). Ownership interests in the Global Notes held by the Common Depositary will be shown on, and transfers thereof will be effected only through, records maintained by Euroclear and Cedel and their respective participants.


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(b) For purposes of this Agreement, "Exchange Date" shall mean the date 40 days after the Settlement Date. For purposes of this Agreement, the term "United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. Without unnecessary delay, but in any event not later than the Exchange Date, the Issuer will execute and deliver to the Fiscal Agent at its London office definitive Notes in the aggregate principal amount of the Global Note, to be issued in exchange for the Global Note. All Bearer Notes so issued and delivered will have Coupons attached. The Global Note may be exchanged for an equal aggregate principal amount of definitive Notes only on or after the Exchange Date. Upon any demand for exchange for definitive Notes in accordance with this paragraph, the Issuer shall cause the Fiscal Agent to authenticate and deliver (at an office or agency outside the United States in the case of Bearer Notes) the definitive Notes to the Holder, only upon presentation to the Fiscal Agent of a written statement substantially in the form of Exhibit E hereto with respect to the Global Note or portion thereof being exchanged, signed by Euroclear or Cedel, to the effect that it has received in writing, by tested telex or by electronic transmission the certification substantially in the form of Exhibit F hereto, such latter certification being dated no earlier than 15 days prior to the Exchange Date and signed by or on behalf of the person appearing in its records as the beneficial owner of the Global Note or portion thereof being exchanged. Upon receipt of such certification the Fiscal Agent shall cause the Global Note to be endorsed in accordance with paragraph (d) below. Any exchange as provided in this Section 4(b) shall be made free of charge to the Holders and the beneficial owners of the Global Note and to the Holders and the beneficial owners of the definitive Notes issued in such exchange, except that a person receiving definitive Notes must bear the cost of insurance, postage, transportation and the like in the event that such person does not receive such definitive Notes in person at the offices of Euroclear or Cedel.


(c) The delivery to the Fiscal Agent by Euroclear or Cedel of any written statement referred to above may be relied upon by the Issuer and the Fiscal Agent as conclusive evidence that a corresponding certification or certifications has or have been delivered to Euroclear or Cedel, as the case may be, pursuant to the terms of this Agreement.


(d) Upon any such exchange of all or a portion of the Global Note for a definitive Note or Notes, the Global Note shall be endorsed by or on behalf of the Fiscal Agent to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of such definitive Note or Notes. Until so exchanged in full, the Global Note shall in all respects be entitled to the same benefits under this Agreement as definitive Notes authenticated and delivered hereunder, except that the beneficial owners of such Global Note shall not be entitled to receive payments of interest on the Notes or to convert the Global Note into Common Stock (as defined in Section 14(a)) or any other security, cash or other property, until they have exchanged their beneficial interests in such Global Note for definitive Notes.


(e) Notes sold to subscribers in the United States will be sold only to "qualified institutional buyers" ("QIBs") within the meaning of Rule 144A promulgated under the Securities Act of 1933, as amended (the "1933 Act"), approved by Merrill Lynch,


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Pierce, Fenner & Smith Incorporated, as placement agent of the Notes sold in the United States (the "Placement Agent"), or by the Issuer in transactions exempt from registration under the 1933 Act. Any such Notes shall be issued initially in the form of one or more definitive global Notes (each a "DTC Note") registered in the name of Cede & Co. (or another nominee of The Depository Trust Company (together with any successor depository for the Notes, "DTC")) as nominee of the DTC. A DTC Note shall be substantially in the form set forth in Exhibit H hereto, with the legend required by Section 4(g) and such other notations, legends or endorsements as may be required by law, stock exchange rule or common usage. Ownership interests in a DTC Note registered in the name of Cede & Co. (or another nominee of DTC) will be represented through financial institutions acting on behalf of the beneficial owners as direct or indirect participants of DTC. Ownership interests in DTC Notes may only be held by QIBs. Holders of beneficial interests in a DTC Note may obtain definitive Registered Notes (but not definitive Bearer Notes), subject to certain restrictions on transfer as provided in Section 5(h) (all DTC Notes, all Registered Notes issued in exchange for interests in a DTC Note, and all Notes issued upon registration of transfer or exchange of Registered Notes so issued, are hereinafter called "Restricted Notes," provided that a Note shall cease to be a Restricted Note on the Resale Restriction Termination Date (as defined in Section 4(g) below) with respect to such Note or on any earlier date on which the Issuer shall, in its sole and absolute discretion, waive the transfer restrictions applicable to such Note). Restricted Notes (other than DTC Notes) issued pursuant to this Section 4(e) and Section 5(h) shall be substantially in the form of Exhibit A-2 with the legend required by Section 4(g) and such other notations, legends or endorsements as may be required by law, stock exchange rule or common usage. Restricted Notes shall be issuable in minimum denominations of $250,000 and integral multiples of $1,000 in excess thereof.


(f) If at any time DTC notifies the Issuer that it is unwilling or unable to continue as a depositary for the Notes, the Issuer shall appoint a successor depositary and, if a successor depositary is not so appointed within 90 calendar days after the Issuer receives notice or becomes aware of such unwillingness or ineligibility, the Issuer will issue Notes (which shall be Restricted Notes if so required by this Agreement) in definitive form in exchange for interests in the DTC Notes


(g) All Restricted Notes and each share certificate of Common Stock of the Issuer issued upon the conversion of a Restricted Note pursuant to Section 14 hereof, if any, and all Notes issued upon registration of transfer of all, or any part of, or in exchange for, such Restricted Notes shall be subject to the restrictions on transfers as set forth in Section 5(h) hereof and in the following legend required to be set forth, in substantially the following form, on the face of such Restricted Notes and on the share certificates of Common Stock issued upon conversion thereof; provided that the legend on Restricted Notes which are DTC Notes may be appropriately modified to permit a QIB holding an interest in a DTC Note to transfer such interest to another QIB who also will hold such interest through DTC without the necessity of delivering a Transfer Certificate (as defined in Section 5(h) hereof), but only if such transfer is effected through DTC without the issuance of a definitive Note:


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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
EXCHANGE DATE (AS DEFINED IN THE FISCAL AGENCY AGREEMENT REFERRED TO
HEREIN) AND THE LAST DATE ON WHICH THE ISSUER OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 PROMULGATED UNDER THE 1933 ACT) OF THE ISSUER WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY TO A
PERSON THAT IS NOT AN "AFFILIATE" OR ACTING ON BEHALF OF AN "AFFILIATE" OF
THE ISSUER AND ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (C) TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE 1933 ACT, (E) TO
AN INSTITUTIONAL INVESTOR WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(l), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER
THE 1933 ACT THAT IS ACQUIRING THE SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION IN VIOLATION OF THE 1933 ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
(SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF A TRANSFEREE'S PROPERTY BE AT ALL TIMES WITHIN ITS CONTROL),
AND SUBJECT TO THE ISSUER'S, THE REGISTRAR'S AND ANY TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE IN THE FORM APPEARING ON


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THE REVERSE OF THIS SECURITY IS DELIVERED BY THE TRANSFEROR TO THE
REGISTRAR OR A TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.


5. (a) Subject to such reasonable regulations as it may prescribe, the Issuer will keep books (the "Note Register") for the exchange, registration and registration of transfer of Registered Notes (including the Restricted Notes) at the office of the Fiscal Agent at 450 West 33rd Street, New York, New York 10001, the Fiscal Agent acting as its agent for such purposes. The Issuer hereby appoints the Fiscal Agent, acting through its said office, as the registrar with respect to the Registered Notes, upon the terms and subject to the conditions set forth herein and in the Notes. The Fiscal Agent, acting as registrar and any successor registrar or co-registrar appointed pursuant to paragraph 3(c) of the Terms are herein called, collectively, the "Registrar." The Fiscal Agent will keep a record of all Bearer Notes and will make such record available for inspection upon the request of the Issuer. Included in such books and records will be notations as to whether such Bearer Notes have been redeemed, or otherwise paid or cancelled, and, in the case of mutilated, defaced, destroyed, stolen or lost Notes, whether such Notes have been replaced. In the case of the replacement of any of the Notes, the Fiscal Agent or the Registrar, as the case may be, will keep a record of the Note so replaced, and the Note issued in replacement thereof. In the case of the cancellation of any of the Notes, the Fiscal Agent or the Registrar, as the case may be, will keep a record of the Note so cancelled and the date on which such Note was cancelled.


(b) Subject to the provisions of Section 5(h), the Holder of any Registered Note may transfer the same in whole or in part in the amount of U.S. $1,000 or an integral multiple thereof, by surrendering such Note at the office of the Registrar or at the office of any transfer agent (each, a "Transfer Agent") that may be appointed by the Issuer, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Registrar or any such Transfer Agent, as the case may be, duly executed by the Holder thereof or his attorney duly authorized in writing. In exchange for any Registered Note properly presented for transfer, the Fiscal Agent shall promptly authenticate and deliver at the office of the Registrar or at the office of any Transfer Agent, as the case may be, to the transferee or send by mail (at the risk of the transferee) to such address as the transferee may request, a Registered Note or Notes, as the case may require, registered in the name of such transferee, for the same aggregate principal amount as was transferred. In the case of the transfer of any Registered Note in part, the Fiscal Agent shall also promptly authenticate and deliver at the office of the Registrar or at the office of any Transfer Agent, as the case may be, to the transferor or send by mail (at the risk of the transferor) to such address as the transferor may request, a Registered Note or Notes, as the case may require, registered in the name of the transferor, for the same aggregate principal amount as was not transferred.


(c) At the option of the Holder on request confirmed in writing and subject to applicable laws and regulations, a Bearer Note or Notes may at any time after the Exchange Date be presented for exchange for a Registered Note or Notes of an equal aggregate principal amount in authorized denominations at the office of the Registrar or at


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the office of any other Transfer Agent that may be appointed by the Issuer. Registered Notes (including the DTC Notes, the Restricted Notes and Registered Notes received in exchange for Bearer Notes) shall not be exchanged for Bearer Notes. Whenever one or more Bearer Notes shall be surrendered at said office of the Registrar or any Transfer Agent for exchange, together with a written request for the exchange, the Fiscal Agent shall promptly authenticate and deliver (directly or through the Registrar or a Transfer Agent, as the case may be) a Registered Note or Notes for an equal aggregate principal amount in such authorized denominations as may be requested. Registered Notes shall be delivered, at the option of the Holder, at the office of the Registrar or at the office of any Transfer Agent, or sent by mail (at the risk of the Holder) to such address as may be specified by the Holder in the request for exchange. Each Bearer Note surrendered pursuant to this Section 5 shall have attached thereto all unmatured Coupons, provided that any Bearer Note so surrendered after the close of business on the April 23 or October 24 (whether or not a Business Day) (each, a "Regular Record Date") and before the opening of business on the next succeeding May 8 and November 8 (each, an "Interest Payment Date"), respectively, need not have attached the Coupon maturing on the Interest Payment Date to which such Regular Record Date relates. At the option of the Holder on request, confirmed in writing, and subject to applicable laws and regulations, a Registered Note or Registered Notes may be exchanged for a Registered Note or Registered Notes of any authorized denominations and of equal aggregate principal amount, upon surrender of the Registered Note to be exchanged, at the office of the Registrar or at the office of any Transfer Agent. Subject to Section 5(e), whenever any Registered Note is so surrendered for exchange, together with a written request for exchange, the Fiscal Agent shall promptly authenticate and deliver (directly or through the Registrar or a Transfer Agent, as the case may be) a Registered Note or Notes which the Holder making the exchange is entitled to receive.


(d) The Issuer shall execute and deliver to the Fiscal Agent Bearer Notes and Registered Notes in such amounts and at such times as to enable the Fiscal Agent to fulfill its responsibilities under this Agreement and the Notes.


(e) The Registrar, the Fiscal Agent and the Transfer Agents, as the case may be, shall not register the transfer of or exchange Notes during any period referred to in paragraph 9(e) of the Terms, except as otherwise provided in such paragraph 9(e).


(f) The Fiscal Agent is hereby authorized, in accordance with paragraph 9(a) of the Terms, to authenticate and deliver from time to time Notes in exchange for or in lieu of Notes which become mutilated, defaced, destroyed, stolen or lost. Each Note delivered in exchange for or in lieu of any Note shall carry all the rights to interest accrued and unpaid and to accrue which were carried by such Note.


(g) Transfer, registration and exchange (other than in accordance with paragraph 9(a) of the Terms) of any Note or Notes shall be permitted and executed as provided in this Section 5 without any charge to the Holder of any such Note or Notes other than any taxes or governmental charges payable on transfers or any expenses of delivery by other than regular mail, but subject to such reasonable regulations as the Issuer, the Registrar and the Transfer Agents may prescribe. Any registration of transfer or exchange will be


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effected upon the Registrar or the Transfer Agent, as the case may be, being satisfied with the documents of title and identity of the person making the request and, with respect to Registered Notes, upon registration of such transfer in the Note Register. Registration of the transfer of a Registered Note by the Registrar shall be deemed to be the acknowledgment of such transfer on behalf of the Issuer.


(h) Only QIBs may hold interests in DTC Notes. Resales or other transfers between QIBs holding an interest in a DTC Note will be conducted according to DTC rules and procedures applicable to United States corporate debt obligations and, so long as such transfers are effected through DTC to another QIB pursuant to Rule 144A under the 1933 Act without the issuance of Definitive Notes, shall not require the delivery of a Transfer Certificate (as defined below). A QIB holding an interest in a DTC Note who proposes to transfer all or part of such interest (other than pursuant to Rule 144A of the 1933 Act to another QIB who will also hold such interest through DTC pursuant to a transfer effected through DTC without the issuance of a definitive Note) must notify the Registrar and, prior to such transfer, such transferor must complete, sign and deliver to the Registrar or a Transfer Agent a certification substantially in the form of Exhibit J hereto (a "Transfer Certificate") and, if the transfer is being made to an Institutional Accredited Investor, as defined in and contemplated by clause (v) below, the transferee must, prior to such transfer, sign and deliver to the Registrar or a Transfer Agent a certification substantially in the form of Exhibit I hereto. The Issuer will provide to the Fiscal Agent from time to time and the Fiscal Agent shall make available at its office and the office of each Transfer Agent and Registrar at the request of any Holder of any Restricted Notes, copies of the forms attached hereto as Exhibits I and J. A QIB holding an interest in a DTC Note may at any time exchange such interest for Registered Notes in definitive form upon application to the Registrar or a Transfer Agent. Notes issued in exchange for or upon registration of transfer of interests in the DTC Notes shall be issued only as Registered Notes, which, so long as required by this Agreement, shall be Restricted Notes in minimum denominations of $250,000 and integral multiples of $1,000 in excess thereof.


Subject to compliance with this Section 5(h), upon any registration of transfer or exchange of an interest in a DTC Note for Registered Notes in definitive form, the DTC Note shall be endorsed by or on behalf of the Fiscal Agent to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of such definitive Registered Notes and the Registrar shall take such other action as is appropriate to register the exchange of such Notes or to register the transfer of such Notes to or for the account of the transferee.


A QIB holding definitive Registered Notes may at any time exchange such Notes for interests in the DTC Notes by notifying the Registrar. Subject to compliance with this Section 5(h) and upon surrender of such definitive Registered Notes to the Registrar or a Transfer Agent, the DTC Note shall be endorsed by or on behalf of the Fiscal Agent to reflect the increase in its principal amount by an amount equal to the aggregate principal amount of such d ...