Exhibit 99.2
AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE
Dated as of June 12, 2001
to
INDENTURE
Dated as of July 26, 1995
between
MEDITRUST CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
as Successor Trustee
Exercisable Put Option Notes due August 15, 2011
AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE
AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE, dated as of June 12,
2001 between Meditrust Corporation, a Delaware corporation (formerly Meditrust,
a Massachusetts business trust, the "Company"), and State Street Bank and Trust
Company, a Massachusetts trust company (the "Trustee"), to the Indenture dated
as of July 26, 1995, between the Company and Fleet National Bank, predecessor
Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which
provides for the issuance by the Company of one or more series of securities
thereunder;
WHEREAS, Section 9.01 of the Indenture provides, among other things,
that the Company, when authorized by Board Resolution, and the Trustee, at any
time and from time to time, without notice to or consent of any Holders, may
amend the Indenture or enter into an indenture supplemental to the Indenture to
add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company;
WHEREAS, the Company issued a series of securities under the Indenture,
designated its Exercisable Put Option Notes due August 15, 2011 (the "Notes");
WHEREAS, Section 11 of the Note provides, among other things, that the
Company make a change that does not adversely affect the interests or rights of
any Holder without the consent or notice of any Holder;
WHEREAS, the Company wishes to add covenants of the Company solely for
the benefit of the holders of securities issued pursuant to this Sixth
Supplemental Indenture and no other series of securities issued pursuant to the
Indenture;
WHEREAS, the Company desires and has requested the Trustee to join with
it in the execution and delivery of this Sixth Supplemental Indenture for the
purpose of amending the Sixth Supplemental Indenture in certain respects in
connection with the Notes; and
WHEREAS, the amendment in this Amended and Restated Sixth Supplemental
Indenture shall apply only to the Notes, and the covenants of the Company
contained in the amendment in this Amended and Restated Sixth Supplemental
Indenture are solely for the benefit of the Holders of the Notes.
NOW, THEREFORE, witnesseth that, in consideration of the premises and
of the covenants herein, it is hereby agreed as follows:
ARTICLE ONE
THE TERMS AND FORM OF THE NOTES
(a) TERMS OF THE NOTES.
(i) The Notes shall constitute one series of securities having the
title Exercisable Put Option Notes due August 15, 2011.
(ii) The Notes shall be limited in the aggregate principal amount of
$150,000,000.
(iii) The Notes shall be issued at 100% of the principal amount
thereof.
(iv) The Notes will mature on August 15, 2011, subject to the Call
Option (as defined below) and the Put Option (as defined below).
(v) The rate at which the Notes shall bear interest shall be (A) at
7.114% per annum from August 12, 1997, to but not including August 15, 2004, and
(B) at the Interest Rate to Maturity (as defined below) from August 15, 2004
until August 15, 2011. The Interest Payment Dates on which interest will be
payable shall be February 15 and August 15 in each year, beginning February 15,
1998; the Record Dates for the interest payable on the Notes on any Interest
Payment Date shall be the Business Day immediately preceding each Interest
Payment Date (if the Notes are evidenced by a global note in book-entry form and
otherwise shall be the last Business Day of the calendar month immediately
preceding the month in which the related Interest Payment Date occurs) and the
basis upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(vi) The Notes will be issuable in denominations of $100,000 and
multiples of $1,000 in excess thereof.
(vii) The place where the principal of, premium, if any, and interest
on the Notes shall be payable and the Notes may be surrendered for registration
of transfer or exchange and where notices or demands to or upon the Company in
respect of the Notes and the Indenture may be served shall be State Street Bank
and Trust Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
(viii) The entire outstanding principal amount of the Notes (and
premium, if any) shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.02 of the Indenture.
(ix) Payment of the principal of (and premium, if any) and interest on
the Notes shall be payable in Dollars, and the Notes shall be denominated in
Dollars.
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(x) In exchange for certain consideration to be paid by ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Callholder") to the initial holder of
the Notes (the "Noteholder"), the Noteholder will enter into a Call Option with
the Callholder, pursuant to which the Callholder will have the right to purchase
the Notes from the Noteholder (the "Call Option") on August 15, 2004 (the "Call
Settlement Date") at 100% of the principal amount thereof (the "Call Price"). On
the Call Settlement Date, the Company may repurchase the Notes, in whole but not
in part, from the Callholder at a price equal to the greater of (A) 100% of the
principle amount of the Notes and (B) the sum of the present values of the
Remaining Scheduled Payments (as defined below) thereon, as determined by the
Callholder, discounted to the Call Settlement Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate, plus in either case accrued and unpaid interest from August 15, 2004 on
the principal amount being purchased to the date of purchase. If the Company
elects to repurchase the Notes, it shall pay the purchase price therefor in
same-day funds by wire transfer to an account designated by the Callholder on
the Call Settlement Date.
The Callholder will notify the Company and the trustee of the Trust
(the "Trust Trustee"), not later than five Business Days prior to the Call
Settlement Date, of its intention to purchase the Notes subject to the
exceptions described herein. The Company thereafter will notify the Trust
Trustee and the Callholder, not later than the Business Day immediately
preceding the Determination Date (as defined below), that the Company has
irrevocably determined to exercise its right to repurchase the Notes from the
Callholder.
From and after August 15, 2004, the Notes will bear interest at the
Interest Rate to Maturity. The obligation of the Callholder to purchase the
Notes on the Call Settlement Date is subject to the condition that no Event of
Default, or any event which, with the giving of notice or passage of time, or
both, would constitute an Event of Default, with respect to the Notes shall have
occurred and be continuing.
The Interest Rate to Maturity shall be determined by ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Calculation Agent") by 4:00 p.m., New
York City time, on the third Business Day immediately preceding August 15, 2004
(the "Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum and will be the Base Rate (7.114%) plus the Spread, which
will be based on the Dollar Price (as defined below) of the Notes calculated as
described in the next sentence. The "Dollar Price" of the Notes shall be equal
to the present value of the remaining principal and interest payments of the
Base Rate from August 15, 2004, discounted at the Treasury Rate. The Spread, as
determined in the manner specified in the next succeeding sentence, shall be the
lowest bid, expressed as a spread in the terms of the Base Rate given the Dollar
Price as calculated in the prior sentence. The Spread will be obtained by the
Calculation Agent on the Determination Date from each of five leading dealers of
publicly traded debt securities of the Company in The City of New York (which
may include the Calculation Agent or one of its affiliates) selected by the
Calculation Agent, for the full aggregate principal amount of the Notes, but
assuming an issue date on August 15, 2004, a stated annual interest rate equal
to the Base Rate plus the spread bid by such dealer, for settlement, without
accrued interest, on August 15, 2004. If fewer than five such dealers bid as
described above, then the Spread shall be the arithmetic mean of the bids
obtained, determined as described above. Notwithstanding the calculation of the
Spread described above, if the Calculation Agent and the Company agree, the
Callholder and the Company may mutually determine the Interest
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Rate to Maturity for the Notes. The Interest Rate to Maturity announced by the
Calculation Agent, absent manifest error, shall be binding and conclusive upon
the beneficial owners and holders of the Notes, the Company and the Trustee.
"Treasury Rate" means, with respect to the Call Settlement Date, the
rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues (as defined below), assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal to Comparable
Treasury Price (as defined below) for such Call Settlement Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Calculation Agent as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
Notes being purchased.
"Comparable Treasury Price" means, with respect to the Call Settlement
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) on the third Business Day
preceding such Call Settlement Date, as set forth on "Telerate Page 500" (or
such other page as may replace Page 500) or (b) if such page (or any successor
page) is not displayed or does not contain such an offer prices on such Business
Day, (i) the average of the Reference Treasury Dealer Quotations for such Call
Settlement Date, after excluding the highest and lowest such Reference Treasury
Quotations, or (ii) if the Calculation Agent obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference
Treasury-Dealer Quotations. "Telerate Page 500" means the display designated as
"Page 500" on the Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace
Page 500 on such service) or such other service displaying such Treasury Rate as
may replace the Dow ▇▇▇▇▇ Telerate Service. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any Call
Settlement Date, the average, as determined by the Calculation Agent, of the
offer prices for the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) quoted in writing to the Calculation Agent
by such Reference Treasury Dealer by 3:30 p.m., on the third Business Day
preceding such call Settlement Date.
"Reference Treasury Dealer" means each of CS First Boston Corporation,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Salomon Brothers Inc. and their respective
successors; provided, however, that it any of the foregoing or their affiliates
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Calculation Agent shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the Notes, the
remaining scheduled payments of the principal thereof to be purchased and
interest thereon, to the extent of the Base Rate (7.114%) only, that would be
due after the related Call Settlement Date but for such purchase; provided,
however, that, if such Call Settlement Date is not an Interest Payment Date with
respect to such Notes, the amount on the next scheduled interest payment
thereon, to the extent of the Base Rate only, will be reduced by the amount of
interest accrued thereon, to the extent of the Base Rate only, to such Call
Settlement Date.
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If the Callholder has exercised its right to call the Notes and the
Company has not previously notified the Callholder and the Trustee of its
intention to exercise its right to purchase the Notes from the Callholder, the
Callholder will notify the Company and the Trustee by telephone, confirmed in
writing, by 4:00 p.m., New York City time, on the Determination Date, of the
Interest Rate to Maturity.
All of the Notes will be automatically delivered to the account of the
Callholder (by book-entry through The Depository Trust Company ("DTC")) or the
Company, as and the case may be, pending payment of the purchase price therefor,
on the Call Settlement Date.
(xi) The Noteholder shall have the right, upon at least one Business
Day but not more than four Business Days prior written notice, to require the
Company to repurchase on August 15, 2004 (the "Put Settlement Date") all of the
Notes (the "Put Option") at a purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid interest to the Put Settlement Date. The
Trustee shall also give notice of its intent to exercise the Put Option on the
Put Settlement Date if the Callholder has exercised the Call Option but fails to
make payment in full thereon on the date required in the Call Option.
(xii) Except for such rights as are set forth in the Call Option and
the Put Option, the holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(xiii) Other than as set forth herein, there shall be no deletions
from, modifications of or additions to the Events of Default or additional
covenants of the Company with respect to the Notes from those set forth in the
Indenture.
(xiv) The Notes will initially be issued in definitive form as a single
note. Upon the exercise of the Call Option, the definitive Note may be exchanged
for a single global note (the "Global Note") registered in the name of DTC or
its nominee. If represented by a Global Note, (i) DTC or its nominee will
credit, on its book-entry registration and transfer system, the respective
amounts of Notes represented by the Global Note; (ii) ownership of beneficial
interest in the Global Note will be limited to institutions that have accounts
with DTC or its nominee ("Participants") and to persons that may hold interests
through Participants; (iii) beneficial owners of interest in the Global Note may
exchange such interests for Notes of like tenor of any authorized form and
denomination only in the manner provided in Section 2.06 of the Indenture; and
(iv) DTC shall be depositary of the Global Note.
(xv) The Notes shall not be issuable as Bearer Securities.
(xvi) Interest on any Note shall be payable only to the Person in whose
name that Note (or one or more Predecessors Securities thereof) is registered at
the close of business on the Regular Record Date for such interest.
(xvii) the Notes are not Guaranteed Securities.
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(b) FORM OF THE NOTES.
(i) The text of the Notes due shall be substantially in the following
form:
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MEDITRUST
7.114% Notes due August 15, 2011
PRINCIPAL AMOUNT $150,000,000 CUSIP NO: ▇▇▇▇▇▇▇▇▇
DUE August 15, 2011
MEDITRUST, a Massachusetts business trust, promises to pay to
Meditrust Exercisable Put Option Securities(sm)Trust
or registered assigns, the principal sum of One Hundred Fifty Million Dollars,
on August 15, 2011.
Additional provisions of this Security are set forth on the reverse
side of this Security.
_____________, ______ MEDITRUST
(SEAL)
By:
--------------------------------
Secretary
By:
--------------------------------
President
CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
By:
--------------------------------
Authorized Officer
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MEDITRUST
Exercisable Put Option Notes due August 15, 2011
CUSIP NO: ▇▇▇▇▇▇▇▇▇
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE 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 AN
APPLICABLE EXEMPTION THEREFROM.
1. INTEREST. Meditrust, a Massachusetts business trust, and any successor under
the Indenture (the "Company"), for value received, hereby promises to pay to
Meditrust Exercisable Put Option Securities(sm)Trust (the "Trust"), formed
pursuant to an Amended and Restated Declaration of Trust and Trust Agreement
(the "Trust Agreement"), dated as of August 7, 1997, or to any subsequent
registered assignee or transferee Holder hereof upon presentation, the principal
sum of ONE HUNDRED AND FIFTY MILLION DOLLARS ($150,000,000) on August 15, 2011
(the "Maturity Date"), and to pay interest on the outstanding principal amount
of this Note (i) at 7.114% per annum (the "Initial Interest Rate") from August
12, 1997 (the "Original Issuance Date") to but not including August 15, 2004,
and (ii) at the Interest Rate to Maturity (determined as hereinafter provided)
from August 15, 2004 until the Maturity Date. The Company shall pay interest on
the Notes semi-annually in arrears on February 15, and August 15 of each year,
commencing February 15, 1998, or if any such day is not a Business Day, on the
next succeeding Business Day (and without any interest or other payment in
respect of such delay) (each an "Interest Payment Date"). Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
2. METHOD OF PAYMENT. The Paying Agent will pay interest (except defaulted
interest) on the Notes from monies provided by the Company to the persons who
are the registered Holders of the Notes at the close of business on the Business
Day immediately preceding each Interest Payment Date (if the Notes are evidenced
by a global note in book-entry form and otherwise shall be the last Business Day
of the calendar month immediately preceding the month in which the related
interest payment date occurs). Holders must surrender Notes to a Paying Agent to
collect principal payments. The Paying Agent will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts.
The Paying Agent will make all payments of principal and interest in
immediately available funds, so long as The Depository Trust Company or a
successor depository continues to make its Same-Day Funds Settlement System
available to the Company.
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3. REGISTRAR AND AGENTS. Initially, State Street Bank and Trust Company
will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company may change any Registrar, co-registrar, Paying Agent and
agent for service of notices and demands without notice. The Company or any of
its Subsidiaries may act as Paying Agent. The address of State Street Bank and
Trust Company is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Rhode Island
02903-2305.
4. INDENTURE, LIMITATIONS. The Company issued the Notes as a series of
its securities under an Indenture dated as of July 26, 1995 as supplemented by a
Sixth Supplemental Indenture dated as of August 12, 1997 (the "Indenture")
between the Company and State Street Bank and Trust Company, as successor
trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). The Notes are subject to all such terms,
and the Holders of the Notes are referred to the Indenture and the TIA for a
statement of such terms.
The Notes are general unsecured obligations of the Company limited to
$150,000,000 principal amount. The Indenture imposes certain limitations on the
ability of the Company to, among other things, incur certain liens and certain
additional indebtedness, make payments in respect of its shares of beneficial
interest, merge or consolidate with any other Person and sell, lease, transfer
or dispose of its properties or assets.
5. CALL AND REPURCHASE OPTION. In exchange for certain consideration
paid by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Callholder") to
the Trust, the Trust has entered into a Call Option with the Callholder,
pursuant to which the Callholder has the right to purchase the Notes from the
Trust (the "Call Option") on August 15, 2004 (the "Call Settlement Date") at
100% of the principal amount thereof (the "Call Price"). On the Call Settlement
Date, the Company may repurchase the Notes, in whole but not in part, from the
Callholder at a price equal to the greater of (i) 100% of the principal amount
of the Notes and (ii) the sum of the present values of the Remaining Scheduled
Payments (as defined herein) thereon, as determined by the Callholder,
discounted to the Call Settlement Date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from August 15, 2004 on the principal amount
being purchased to the date of purchase. If the Company elects to repurchase the
Notes, it shall pay the purchase price therefor in same-day funds by wire
transfer to an account designated by the Callholder on the Call Settlement Date.
The Callholder will notify the Company and trustee of the Trust (the
"Trust Trustee"), not later than five Business Days prior to the Call Settlement
Date, of its intention to purchase the Notes subject to the exceptions described
herein. The Company thereafter will notify the Trust Trustee and the Callholder,
not later than the Business Day immediately preceding the Determination Date (as
defined herein), that the Company has irrevocably determined to exercise its
right to repurchase the Notes from the Callholder.
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From and after August 15, 2004, the Notes will bear interest at the
Interest Rate to Maturity. The obligation of the Callholder to purchase the
Notes on the Call Settlement Date is subject to the condition that no Event of
Default, or any event which, with the giving of notice or passage of time, or
both, would constitute an Event of Default, with respect to the Notes shall have
occurred and be continuing.
The Interest Rate to Maturity shall be determined by ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Calculation Agent") by 4:00 p.m., New
York City time, on the third Business Day immediately preceding August 15, 2004
(the "Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum and will be the Base Rate (6.194%) plus the Spread, which
will be based on the Dollar Price (as defined herein) of the Notes calculated as
described in the next sentence. The "Dollar Price" of the Notes shall be equal
to the present value of the remaining principal and interest payments of the
Base Rate from August 15, 2004, discounted at the Treasury Rate. The Spread, as
determined in the manner specified in the next succeeding sentence, shall be the
lowest bid, expressed as a spread in the terms of the Base Rate given the Dollar
Price as calculated in the prior sentence. The Spread will be obtained by the
Calculation Agent on the Determination Date from each of five leading dealers of
publicly traded debt securities of the Company in The City of New York (which
may include the Calculation Agent or one of its affiliates) selected by the
Calculation Agent, for the full aggregate principal amount of the Notes, but
assuming an issue date on August 15, 2004, a stated annual interest rate equal
to the Base Rate plus the spread bids by such dealer, for settlement without
accrued interest on August 15, 2004. If fewer than five such dealers bid as
described above, then the Spread shall be the arithmetic mean of the bid
obtained determined as described above. Notwithstanding the calculation of the
Spread described above, if the Calculation Agent and the Company agree, the
Callholder and the Company may mutually determine the Interest Rate to Maturity
for the Notes. The Interest Rate to Maturity announced by the Calculation Agent,
absent manifest error, shall be binding and conclusive upon the beneficial
owners and Holders of the Notes, the Company and the Trustee.
"Treasury Rate" means, with respect to the Call Settlement Date, the
rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues (as defined herein), assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal to the Comparable
Treasury Price (as defined herein) for such Call Settlement Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Calculation Agent as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
Notes being purchased.
"Comparable Treasury Price" means, with respect to the Call Settlement
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) on the third Business Day
preceding such Call Settlement Date, as set forth on "Telerate Page 500" (or
such other page as may replace Page 500) or (b) if such page (or any successor
page) is not displayed or does not contain such offer prices on such Business
Day, (i) the average of the Reference Treasury Dealer Quotations for such Call
Settlement Date, after excluding the highest and lowest such Reference Treasury
Quotations, or (ii) if the Calculation Agent obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all
10
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the display
designated as "Page 500" on the Dow ▇▇▇▇▇ Telerate Service (or such other page
as may replace Page 500 on such service) or such other service displaying such
Treasury Rate as may replace the Dow ▇▇▇▇▇ Telerate Service. "Reference Treasury
Dealer Quotations" means, with respect to each reference Treasury Dealer and any
Call Settlement Date, the average, as determined by the Calculation Agent, of
the offer prices for the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) quoted in writing to the Calculation Agent
by such Reference Treasury Dealer by 3:30 p.m., on the third Business Day
preceding such Call Settlement Date.
"Reference Treasury Dealer" means each of CS First Boston Corporation,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Salomon Brothers Inc. and their respective
successors; provided, however, that if any of the foregoing or their affiliates
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Calculation Agent shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the Notes, the
remaining scheduled payments of the principal thereof to be purchased and
interest thereon, to the extent of the Base Rate (6.194%) only, that would be
due after the related Call Settlement Date but for such purchase; provided,
however, that if such Call Settlement Date is not an Interest Payment Date with
respect to such Notes, the amount of the next succeeding scheduled interest
payment thereon, to the extent of the Base Rate only, will be reduced by the
amount of interest accrued thereon, to the extent of the Base Rate only, to such
Call Settlement Date.
If the Callholder has exercised its right to call the Notes and the
Issuer has not previously notified the Callholder and the Trust Trustee of its
intention to exercise its right to purchase the Notes from the Callholder, the
Callholder will notify the Issuer and the Trust Trustee by telephone, confirmed
in writing, by 4:00 p.m., New York City time, on the Determination Date, of the
Interest Rate to Maturity.
All of the Notes will be automatically delivered to the account of the
Callholder (by book-entry through the Depository Trust Company) or the Issuer,
as the case may be, pending payment of the purchase price therefor, on the Call
Settlement Date.
6. PUT OPTION. The Trust has the right, upon at least one Business Day
but not more than four Business Days prior written notice, to require the
Company to repurchase on August 15, 2004 (the "Put Settlement Date") all of the
Notes (the "Put Option") at a price equal to 100% of the principal amount
thereof plus accrued and unpaid interest to the Put Settlement Date. The Trust
Trustee shall also give notice of its intent to exercise the Put Option on the
Put Settlement Date if the Callholder has exercised the Call Option but fails to
make payment in full thereon on the date required in the Call Option.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Note is one of a duly
authorized issue of Securities of the Company designated as its Exercisable Put
Option Notes due August 15, 2011 limited in aggregate principal amount to
$150,000,000. The Notes are in
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registered form without coupons in denominations of $100,000, and multiples of
$1,000 principal amount and integral multiples thereof. A Holder may register
the transfer of or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as the owner of it for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal or interest
on any Note remains unclaimed for three years, the Trustee and the Paying Agent
will pay the money back to the Company at its written request, unless otherwise
required by law. Thereafter, Holders, may look only to the Company for payment.
10. DISCHARGE PRIOR TO MATURITY. The Indenture will be discharged and
cancelled except for certain sections thereof upon payment of all the Notes, or
upon the irrevocable deposit with the Trustee of funds or U.S. Government
Obligations maturing on or before such payment date sufficient, together with
scheduled payments of interest thereon without reinvestment, to pay principal,
premium, if any, and interest on such payment date.
11. SUPPLEMENTAL INDENTURE. Subject to certain exceptions, the
Indenture may be amended or supplemented with respect to the Notes with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding and any existing default or compliance with any provision may
be waived with the consent of the Holders of the majority in principal amount of
the Notes then outstanding. Without the consent of or notice to any Holder, the
Company may supplement the Indenture, to, among other things, provide for
uncertificated Notes, cure any ambiguity, defect or inconsistency, or make any
other change that does not adversely affect the interests or rights of any
Holder.
12. SUCCESSORS. Upon satisfaction of the conditions provided in the
Indenture, if a successor to the Company assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor will be released
from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default with respect to the
Notes, as defined in the Indenture, occurs and is continuing, the Trustee or the
Holders of a majority in principal amount of Notes may declare all the Notes to
be due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the Notes then outstanding may direct the Trustee in its exercise of any
trust or power with respect to the Notes. The Trustee may withhold from Holders
of Securities notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as
to the absence of any Default or Event of ▇▇▇▇▇▇▇.
▇▇
▇▇. TRUSTEE DEALINGS WITH THE COMPANY. Fleet National Bank, the Trustee
under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates as if it were not the
Trustee.
15. NO RECOURSE AGAINST OTHERS. No shareholder, trustee or officer, as
such, past, present or future, of the Company or any successor corporation or
trust shall have any liability for any obligation of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6, 1985,
AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE SECRETARY OF
STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME "MEDITRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS "TRUSTEES;" BUT NOT
INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS
DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
16. AUTHENTICATION. This Note shall not be valid until the Trustee
signs the certificate of authentication on the reverse side of this Note.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (joint tenants with rights of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/W/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and any supplemental indentures thereto. It also
will furnish the text of this Note in larger type. Requests may be made to:
MEDITRUST, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Controller.
13
ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Note to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
===============================================================================
===============================================================================
.....................................................
.....................................................
.....................................................
.....................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint................................................
..................................................... agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
it.
----------------------------------
Date:.........................................................
Your signature:...............................................
(Sign exactly as your name appears on
the reverse side of this Note)
Signature Guaranteed By:...............................................
Note: Signature must be guaranteed by a participant
in a Signature Guaranty Medallion Program.
14
ARTICLE TWO
ADDITIONAL PROVISIONS
The following provisions in addition to those contained in the
Indenture will apply to the Notes:
(a) LIMITATION ON LIENS.
The Company will not pledge or otherwise subject to any Lien, any of
its or its Subsidiaries' property or assets unless the Notes are secured by such
pledge or Lien equally and ratably with all other obligations secured thereby so
long as such other obligations shall be so secured; provided that such covenant
will not apply to Liens securing obligations which do not in the aggregate at
any one time outstanding exceed 10% of Consolidated Net Tangible Assets of the
Company and its consolidated Subsidiaries and also will not apply to:
(1) any Lien or charge on any property, tangible or intangible, real or
personal, existing at the time of acquisition or construction of such property
(including acquisition through merger or consolidation) or given to secure the
payment of all or any part of the purchase or construction price thereof or to
secure any indebtedness incurred prior to, at the time of, or within one year
after, the acquisition or completion of construction thereof for the purpose of
financing all or any part of the purchase or construction price thereof;
(2) any Liens securing the performance of any contract or undertaking
of the Company not directly or indirectly in connection with the borrowing of
money, obtaining of advances or credit or the securing of Debts, if made and
continuing in the ordinary course of business;
(3) any Lien in favor of the United States or any state thereof or the
District of Columbia, or any agency, department or other instrumentality
thereof, to secure progress, advance or other payments pursuant to any contract
or provision of any statute;
(4) mechanics', materialmen's, carriers', or other like Liens arising
in the ordinary course of business (including construction of facilities) in
respect of obligations which are not due or which are being contested in good
faith;
(5) any Lien arising by reason of deposits with, or the giving of any
form of security to, any governmental agency or any body created or approved by
law or governmental regulations, which is required by law or governmental
regulation as a condition to the transaction of any business, or the exercise of
any privilege, franchise or license;
(6) any Liens for taxes, assessments or governmental charges or levies
not yet delinquent, or Liens for taxes, assessments or governmental charges or
levies already delinquent but the validity of which is being contested in good
faith;
15
(7) Liens (including judgment Liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith and in
the case of judgment Liens, execution thereof is stayed;
(8) Liens relating to secured indebtedness of the Company outstanding
as of June 30, 1996; and
(9) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to in the
foregoing clauses (1) to (8) inclusive, of this subsection (a), provided,
however, that the amount of any and all obligations and indebtedness secured
thereby shall not exceed the amount thereof so secured immediately prior to the
time of such extension, renewal or replacement and that such extension, renewal
or replacement shall be limited to all or a part of the property which secured
the charge or Lien so extended, renewed or replaced (plus improvements on such
property).
(b) LIMITATION ON INCURRENCE OF OBLIGATIONS FOR BORROWED MONEY.
The Company will not create, assume, incur or otherwise become liable
in respect of, any
(1) Senior Debt unless the aggregate outstanding principal amount of
Senior Debt of the Company will not, at the time of such creation, assumption or
incurrence and after giving affect thereto and to any concurrent transactions,
exceed the greater of (i) 150% of Capital Base, or (ii) 225% of Tangible Net
Worth; and
(2) Non-Recourse Debt unless the aggregate principal amount of Senior
Debt and Non-Recourse Debt outstanding of the Company will not, at the time of
such creation, assumption or incurrence and after giving affect thereto and to
any concurrent transactions, exceed 225% of Capital Base.
For any period during which the Company shall have a Subsidiary or
Subsidiaries, the limitations contained in this subsection (b) shall be applied
to the consolidated financial statements of the Company and its Subsidiaries.
(c) As used herein in this Article Two:
"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt;
"Capital Lease" means at any time any lease of Property which, in
accordance with generally accepted accounting principles, would at such time be
required to be capitalized on a balance sheet of the lessee;
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) less (i) all
current liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like intangibles of the Company
and its consolidated Subsidiaries, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and prepared in
accordance with generally accepted accounting principles; and
16
"Debt" when used with respect to any Person means (i) its indebtedness,
secured or unsecured, for borrowed money; (ii) Liabilities secured by any
existing Lien on Property owned by such Person; (iii) the amount of Liability in
respect of a Capital Lease, and the present value of all payments due under any
arrangement for retention of title (discounted at a rate per annum equal to the
average interest borne by all outstanding Debt Securities determined on a
weighted average basis and compounded semi-annually) if such arrangement is in
substance an installment purchase or an arrangement for the retention of title
for security purposes; and (iv) guarantees of obligations of the character
specified in the foregoing clauses (i), (ii) and (iii) to the full extent of the
Liability of the guarantor (discounted to present value, as provided in the
foregoing clause (iii), in the case of guarantees of title retention
arrangements);
"Liabilities" means, at any date, the items shown as liabilities on the
balance sheet of the Company, except any items of deferred income, including
capital gains;
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and all other title exceptions and encumbrances affecting Property. For
all purposes of this Amended and Restated Sixth Supplemental Indenture, the
Company shall be deemed to be the owner of any Property which it has acquired or
holds subject to a conditional sale agreement, Capital Lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes;
"Non-Recourse Debt" when used with respect to any Person, means any
Debt secured by, and only by, property on or with respect to which such Debt is
incurred where the rights and remedies of the holder of such Debt in the event
of default do not extend to assets other than the property constituting security
therefore;
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof;
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible;
"Senior Debt" means all Debt other than Non-Recourse Debt and
Subordinated Debt;
"Subordinated Debt" means unsecured Debt of the Company which is issued
or assumed pursuant to, or evidenced by, an indenture or other instrument which
contains provisions for the subordination of such Debt (to which appropriate
reference shall be made in the instruments evidencing such Debt if not contained
therein) to the Debt Securities (and, at the option of the Company, if so
provided, to other Debt of the Company, either generally or as specifically
designated);
17
"Subsidiary" means an affiliate controlled by the Company directly, or
indirectly through one or more intermediaries;
"Tangible Assets" means all assets of the Company (including assets
held subject to Capital Leases and other arrangements described in the last
sentence of the definition of "Lien") except: (i) deferred assets, other than
prepaid insurance, prepaid taxes and deposits; (ii) patents, copyrights,
trademarks, trade names, franchises, goodwill, experimental expense and other
similar intangibles; and (iii) unamortized debt discount and expense; and
"Tangible Net Worth" means, with respect to the Company at any date,
the net book value (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Tangible Assets of the
Company at such date minus the amount of its Liabilities at such date.
18
ARTICLE THREE
MISCELLANEOUS
The Indenture, except as amended herein, is in all respects ratified
and confirmed and this Amended and Restated Sixth Supplemental Indenture and all
its provisions herein contained shall be deemed a part thereof in the manner and
to the extent herein and therein provided.
The terms used in this Amended and Restated Sixth Supplemental
Indenture, but not defined herein, shall have the meanings assigned thereto in
the Indenture.
THIS AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
This Amended and Restated Sixth Supplemental Indenture may be
simultaneously executed in any number of counterparts, and all such counterparts
executed and delivered, each as an original, shall constitute one and the same
instrument.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6, 1985,
AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE SECRETARY OF
STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME "MEDITRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS "TRUSTEES," BUT NOT
INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS
DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
19
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Sixth Supplemental Indenture to be duly executed, as of the day and
year first above written.
MEDITRUST CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇
Executive Vice President, Chief
Financial Officer and Treasurer
STATE STREET BANK AND TRUST
COMPANY, as trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF TEXAS )
) ss.:
County of Dallas )
On the 4th day of June, 2001, before me personally came ▇▇▇▇▇ ▇. ▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he is
Executive Vice President and Chief Financial Officer of Meditrust Corporation,
one of the business entities described in and which executed the foregoing
instrument; that s/he knows the seal of Meditrust Corporation; that the seal
affixed to said instrument is Meditrust Corporation's seal; that it was so
affixed by authority of the Board of Directors of Meditrust Corporation; and
that he signed his name thereto by like authority.
[SEAL]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public: State of Texas
My commission expires: October 6, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ )
) ss.:
County of Suffolk )
On the 12th day of June, 2001, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
s/he is Vice President of State Street Bank and Trust Company, one of the
business entities described in and which executed the foregoing instrument;
that s/he knows the seal of said bank; that the seal affixed to said
instrument is such bank's seal; that it was so affixed by authority of the
Board of Directors of said bank; and that s/he signed his/her name thereto by
like authority.
[SEAL]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Notary Public:
My commission expires: March 21, 2008
