EXHIBIT 4.1
SUPPLEMENTAL INDENTURE NO. 1
by and between
SENIOR HOUSING PROPERTIES TRUST
and
STATE STREET BANK AND TRUST COMPANY
As of December 20, 2001
SUPPLEMENTAL TO THE INDENTURE DATED AS OF DECEMBER 20, 2001
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SENIOR HOUSING PROPERTIES TRUST
8-5/8% Senior Notes due 2012
This SUPPLEMENTAL INDENTURE NO. 1 (this "Supplemental Indenture") made
and entered into as of December 20, 2001 between SENIOR HOUSING PROPERTIES
TRUST, a Maryland real estate investment trust (the "Company"), and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee (the
"Trustee"),
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of December 20, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Base Indenture" and, together with this
Supplemental Indenture, as amended, supplemented or otherwise modified from time
to time, the "Indenture") to provide for the future issuance of the Company's
senior debt securities (the "Securities") to be issued from time to time in one
or more series; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a series of its Securities, to be
known as its 8-5/8% Senior Notes due 2012, the form and substance of such
Securities and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINED TERMS
Section 1.1 The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Base Indenture:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Adjusted Total Assets" is defined in clause (i) of Section 3.1(a).
"Annual Debt Service" as of any date means the maximum amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries excluding amortization of debt discount and deferred financing
costs.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in the City of New York are required or authorized
to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participation or other ownership
interests (however designated) of such
Person and any rights (other than debt securities convertible into or
exchangeable for capital stock), warrants or options to purchase any thereof.
"Cash Equivalents" means:
(i) demand deposits, certificates of deposit or repurchase
agreements issued by or maintained with banks or other financial
institutions;
(ii) marketable securities issued or directly and fully
guaranteed as to timely payment by the United States of America or any
agency or instrumentality thereof, or
(iii) any commercial paper or other obligation rated, at time
of purchase, at least "P-2" (or its equivalent) by Moody's or at least
"A-2" (or its equivalent) by Standard & Poor's.
"Change of Control" means such time as any "person" or "group" (as such
terms are defined in Sections 13(d) and 14(d)(2) of the Exchange Act), other
than an Excluded Person, becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 50% of the total voting power of the
Voting Stock of the Company on a fully diluted basis. For such purpose,
"Excluded Person" means (i) RMR, HRPT Properties Trust, a Maryland real estate
investment trust, Hospitality Properties Trust, a Maryland real estate
investment trust, or any other entity for which financing, investment and
operating oversight for substantially all of such entity's activities is
provided by RMR, or any successor to or affiliate of such persons, and (ii) any
person or group acquiring shares issued by the Company in connection with a
merger or acquisition, if the person or group has agreed with the Company to
distribute such shares to the holders of its or their securities within a period
of not longer than one year from the date of such agreement (the "Distribution
Period") and, giving pro forma effect to such distribution as of the date on
which the agreement for the merger or acquisition was entered into (and giving
effect to the transactions contemplated by that agreement), no Change of Control
would have occurred; provided that if such distribution does not occur by the
end of the Distribution Period, a Change in Control shall be deemed to have
occurred at the end of the Distribution Period.
"Change of Control Offer" is defined in Section 4.1 of this
Supplemental Indenture.
"Change of Control Payment" is defined in Section 4.1 of this
Supplemental Indenture.
"Change of Control Payment Date" is defined in Section 4.1 of this
Supplemental Indenture.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following
(without duplication): (i) interest or distributions on Debt of the Company and
its Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries
based on income, (iii) amortization of debt discount and deferred financing
costs, (iv) provisions for gains and losses on properties and property
depreciation and amortization,
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(v) the effect of any noncash charge resulting from a change in accounting
principles in determining Earnings from Operations for such period and (vi)
amortization of deferred charges.
"Debt" of the Company or any Subsidiary means, without duplication, any
indebtedness of the Company or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness for borrowed money secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, to the
extent of the lesser of (x) the amount of indebtedness so secured or (y) the
fair market value of the property subject to such Encumbrance, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued (other than letters of credit issued to
provide credit enhancement or support with respect to other indebtedness of the
Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense, trade payable, conditional sale obligations or obligations under any
title retention agreement, (iv) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, or (v) any lease of property by the
Company or any Subsidiary as lessee which is reflected on the Company's
consolidated balance sheet as a capitalized lease in accordance with GAAP, to
the extent, in the case of items of indebtedness under (i) through (iii) above,
that any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP. Debt also
includes, to the extent not otherwise included, any obligation by the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business), Debt
of another Person (other than the Company or any Subsidiary); it being
understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (other than pursuant
to a change of control provision not materially more favorable to the holder
thereof than that set forth in Section 4.1 of this Supplemental Indenture), (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in exchange for
Capital Stock which is not Disqualified Stock or for Subordinated Debt), (ii) is
convertible into or exchangeable or exercisable for Debt, other than
Subordinated Debt or Disqualified Stock, or (iii) is redeemable at the option of
the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or for Subordinated Debt); in each case on or prior to the stated maturity of
the Notes.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, distributions on
equity securities and property valuation losses, as reflected in the financial
statements of the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
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"Encumbrance" means any mortgage, lien, charge, pledge, security
interest or other encumbrance of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Refunding" means, at any time, any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Subordinated Debt of the
Company or any Subsidiary in an amount not exceeding the aggregate Net Cash
Proceeds received by the Company and its Subsidiaries from the substantially
concurrent sale of Qualified Subordinated Debt, to the extent such proceeds have
not theretofore been taken in account in calculating the amount of an Excluded
Refunding. For such purpose, "Qualified Subordinated Debt" means Subordinated
Debt of the Company or a Subsidiary of the Company (or trust preferred
securities or similar Capital Stock of a Subsidiary of the Company as to which
any related Debt of the Company or other Subsidiaries of the Company is
Subordinated Debt) which does not mature and is not subject to mandatory
repurchase or redemption or to repurchase or redemption at the option of the
holder thereof (other than pursuant to a change of control provision not
materially more favorable to the holder thereof than that set forth in Section
4.1 of this Supplemental Indenture) in whole or in part prior to the stated
maturity of the Notes.
"Funds from Operations" for any period means Earnings from Operations
for such period plus amounts which have been deducted, and minus amounts that
have been added, for the following (without duplication): (i) provision for
taxes of the Company and its Subsidiaries based on income, (ii) amortization of
debt discount and deferred financing costs, (iii) provisions for gains and
losses on properties and property depreciation and amortization, (iv) the effect
of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for such period, (v) expenses and charges
relating to the spin-off of Five Star Quality Care, Inc., and (vi) amortization
of deferred charges.
"Interest Payment Date" with respect to the Notes is defined in Section
101 of the Base Indenture and Section 2.1(b) of this Supplemental Indenture.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of the Notes, the excess, if any, of:
(i) the aggregate present value as of the date of such redemption
or accelerated payment of each dollar of principal being
redeemed or paid and the amount of interest (exclusive of
interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of each such
dollar if such redemption or accelerated payment had not been
made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on
the third Business Day preceding the date a notice of
redemption is given or declaration of acceleration is made)
from the respective dates on which such principal and interest
would have been payable if such redemption or payment had not
been made, over
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(ii) the aggregate Outstanding principal amount of the Notes being
redeemed or paid.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor
thereof.
"Net Cash Proceeds" means the proceeds of any issuance or sale of
Capital Stock, in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of, or shares
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Subsidiary), net of attorney's fees, accountant's fees and brokerage,
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Notes" means the Company's 8-5/8% Senior Notes due 2012, issued under
the Indenture.
"Regular Record Date" with respect to the Notes is defined in Section
101 of the Base Indenture and Section 2.1(b) of this Supplemental Indenture.
"Reinvestment Rate" means 0.50% plus the arithmetic mean of the yields
under the respective heading Week Ending published in the most recent
Statistical Release under the caption Treasury Constant Maturities for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the date of the principal being redeemed or paid. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purpose of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"RMR" means Reit Management & Research LLC, a Delaware limited
liability company.
"Secured Debt" means Debt secured by any Encumbrance.
"Standard & Poor's" means Standard & Poor's Rating Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereof.
"Statistical Release" means that statistical release designated
H.15(519) or any successor publication that is published weekly by the Federal
Reserve System and that establishes annual yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index we designate.
"Subordinated Debt" means Debt which by the terms of such Debt is
subordinated in right of payment to the principal of and interest and premium,
if any, on the Notes.
"Subsidiary" means any corporation or other entity of which a majority
of (i) the voting power of the voting equity securities or (ii) the outstanding
equity interests of which are owned,
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directly or indirectly, by the Company or one or more other Subsidiaries of the
Company. For the purposes of this definition, "voting equity securities" means
equity securities having voting power for the election of directors or similar
functionaries, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) the Undepreciated Real
Estate Assets of the Company and its Subsidiaries not securing any portion of
Secured Debt and (ii) all other assets, including accounts receivable and
intangibles, of the Company and its Subsidiaries not securing any portion of
Secured Debt determined on a consolidated basis in accordance with GAAP. If
Secured Debt secured by real estate or other property or assets of the Company
or its Subsidiaries ("Secondary Collateral") is fully defeased in accordance
with the terms thereof or is also secured by cash or Cash Equivalents in an
amount (determined at the lesser of (i) carrying value in accordance with GAAP
or (ii) fair market value) at least equal to the outstanding principal amount of
such Secured Debt, such Secondary Collateral shall be deemed not to secure any
portion of such Secured Debt for purposes of this definition.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements less adjustments to carrying value in
accordance with GAAP made prior to January 1, 2001) of real estate and
associated tangible personal property used in connection with the real estate
assets of the Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with GAAP.
"Unsecured Debt" means any Debt which is not Secured Debt.
"Voting Stock" of any Person means the Capital Stock of such Person
that is at the time entitled to vote in the election of the board of directors,
board of trustees or the equivalent of such Person.
ARTICLE 2
TERMS OF THE NOTES
Section 2.1 Pursuant to Section 301 of the Indenture, the Notes shall
have the following terms and conditions:
(a) Title; Aggregate Principal Amount; Form of Notes. The Notes shall
be Registered Securities under the Indenture and shall be known as the Company's
"8-5/8% Senior Notes due 2012." The Notes will be limited to an aggregate
principal amount of $200,000,000, subject to the right of the Company to reopen
such series for issuances of additional securities of such series and except (i)
as provided in this Section and (ii) for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 of the
Indenture and except for any Securities which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated
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and delivered hereunder. The Notes (together with the Trustee's certificate of
authentication) shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and made a part of this Supplemental Indenture.
The Notes will be issued in the form of one or more registered global
securities without coupons ("Global Notes") that will be deposited with, or on
behalf of, The Depository Trust Company ("DTC"), and registered in the name of
DTC's nominee, Cede & Co. Except under the circumstance described below, the
Notes will not be issuable in definitive form. Unless and until it is exchanged
in whole or in part for the individual notes represented thereby, a Global 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 nominee of DTC
to a successor depositary or any nominee of such successor.
So long as DTC or its nominee is the registered owner of a Global Note,
DTC or such nominee, as the case may be, will be considered the sole owner or
holder of the Notes represented by such Global Note for all purposes under this
Supplemental Indenture. Except as described below, owners of beneficial interest
in Notes evidenced by a Global Note will not be entitled to have any of the
individual Notes represented by such Global Note registered in their names, will
not receive or be entitled to receive physical delivery of any such Notes in
definitive form and will not be considered the owners or holders thereof under
the Indenture or this Supplemental Indenture.
If DTC is at any time unwilling, unable or ineligible to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue individual Notes in exchange for the Global Note or
Global Notes representing such Notes. In addition, the Company may at any time
and in its sole discretion, subject to certain limitations set forth in the
Indenture, determine not to have any of such Notes represented by one or more
Global Notes and, in such event, will issue individual Notes in exchange for the
Global Note or Global Notes representing the Notes. Individual Notes so issued
will be issued in denominations of $1,000 and integral multiples thereof.
(b) Interest and Interest Rate. The Notes will bear interest at a rate
of 8-5/8% per annum, from December 20, 2001 (or, in the case of Notes issued
upon the reopening of this series of Notes, from the date designated by the
Company in connection with such reopening) or from the immediately preceding
Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually on each January 15 and July 15, commencing July 15, 2002
(each of which shall be an "Interest Payment Date"), to the Persons in whose
names the Notes are registered in the Security Register at the close of business
on January 1 and July 1, as the case may be (whether or not a Business Day),
next preceding such Interest Payment Date (each, a "Regular Record Date").
(c) Principal Repayment; Currency. The stated maturity of the Notes is
January 15, 2012, provided, however, the Notes may be earlier redeemed at the
option of the Company as provided in paragraph (d) below. The principal of each
Note payable on its maturity date shall be paid against presentation and
surrender thereof at the Corporate Trust Office of the Trustee, located
initially at ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in such coin
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or currency of the United States of America as at the time of payment is legal
tender for the payment of public or private debts.
(d) Redemption at the Option of the Company. The Notes will be subject
to redemption at any time at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice to each Holder of Notes to
be redeemed at its address appearing in the Security Register, at a price equal
to the sum of (i) the Outstanding principal amount of the Notes being redeemed,
plus accrued and unpaid interest to but excluding the applicable Redemption
Date, plus (ii) the Make-Whole Amount, if any.
(e) 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 telecommunication. Notices to the Company shall be directed
to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President;
notices to the Trustee shall be directed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, Re: Senior
Housing Properties Trust 8-5/8% Senior Notes due 2012; or as to either party, at
such other address as shall be designated by such party in a written notice to
the other party.
(f) Global Note Legend. Each Global Note shall bear the following
legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
(g) Applicability of Discharge, Defeasance and Covenant Defeasance
Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in
Article Thirteen of the Indenture will apply to the Notes.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.1 Holders of the Notes shall have the benefit of the
following covenants, in addition to the covenants of the Company set forth in
Article Eight of the Indenture:
(a) Limitations on Incurrence of Debt.
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(i) The Company will not, and will not permit any Subsidiary
to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum ("Adjusted Total
Assets") of (without duplication) (A) the Total Assets of the Company
and its Subsidiaries as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K, or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Securities and
Exchange Commission (or, if such filing is not permitted under the
Exchange Act with the Trustee) prior to the incurrence of such
additional Debt and (B) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities
offering proceeds received (to the extent that such proceeds were not
used to acquire real estate assets or mortgages receivable or used to
reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with
the incurrence of such additional Debt.
(ii) The Company will not, and will not permit any Subsidiary
to, incur any Secured Debt if, immediately after giving effect to the
incurrence of such additional Secured Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding
Secured Debt of the Company and its Subsidiaries on a consolidated
basis is greater than 40% of Adjusted Total Assets.
(iii) The Company will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service to the Annual Debt Service for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional
Debt is to be incurred shall have been less than 2.0 to 1.0, on a pro
forma basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (A) such Debt
and any other Debt incurred by the Company and its Subsidiaries on a
consolidated basis since the first day of such four-quarter period and
the application of the proceeds therefrom, including to refinance other
Debt, had occurred at the beginning of such period; (B) the repayment
or retirement of any other Debt by the Company and its Subsidiaries
since the first date of such four-quarter period had been repaid or
retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt
during such period); (C) in the case of Acquired Debt or Debt incurred
in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the
first day of such period with appropriate adjustments with respect to
such acquisition being included in such pro forma calculation; and (D)
in the case of any acquisition or disposition by the Company or its
Subsidiaries on a consolidated basis of any asset or group of assets
since the first day of such four-quarter period, whether by merger,
stock purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Debt had occurred as of the
first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma
calculation. If the Debt giving rise to the need to make the foregoing
calculation or any other Debt incurred after the first day of the
relevant four-quarter period bears
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interest at a floating rate then, for purposes of calculating the
Annual Debt Service, the interest rate on such Debt shall be computed
on a pro forma basis as if the average interest rate which would have
been in effect during the entire such four-quarter period had been the
applicable rate for the entire such period.
(b) Limitations on Distributions. The Company will not, and will not
permit any Subsidiary to, (i) declare or pay any dividend or make any
distribution on or with respect to the Company's Capital Stock (other than (x)
dividends or distributions payable solely in shares of the Company's Capital
Stock, other than Disqualified Stock, or in options, warrants or other rights to
acquire shares of such Capital Stock and (y) the spin-off distribution of the
Capital Stock of Five Star Quality Care, Inc.); (ii) purchase, redeem, retire or
otherwise acquire for value any shares of the Company's Capital Stock; or (iii)
make any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for
value, of Subordinated Debt (other than Excluded Refundings); unless,
immediately after giving pro forma effect to such distribution (each, a
"Restricted Payment"):
(A) no Default under the Indenture shall have occurred and be
continuing or would occur as a result of such Restricted
Payment;
(B) the Company and its Subsidiaries would have been permitted to
incur at least $1.00 of additional Debt (other than Debt
between the Company and one or more its Subsidiaries or
between one or more its Subsidiaries) under the terms of
Section 3.1(a) of this Supplemental Indenture; and
(C) the aggregate amount of all Restricted Payments (the amount,
if other than in cash, to be determined in good faith by the
Board, whose determination shall be conclusive and evidenced
by a Board Resolution) made after the date of this
Supplemental Indenture would not exceed the sum of:
(I) 95% of Funds from Operations accrued on a cumulative
basis during the period (taken as one accounting
period) beginning on October 1, 2001 and ending on
the last day of the Company's most recently completed
calendar quarter; plus
(II) 100% of the aggregate Net Cash Proceeds received by
the Company after the date of this Supplemental
Indenture from the issuance or sale of Capital Stock
of the Company to a Person which is not a Subsidiary
of the Company; plus
(III) $15,000,000.
Notwithstanding the foregoing, this Section 3.1(b) shall not prohibit or limit,
and shall not be violated by, (i) any dividend, distribution or other action
which is necessary to distribute 100% of the Company's real estate investment
trust taxable income (determined prior to any deductions for dividends paid) or
to maintain the Company's status as a real estate investment trust under the
Internal Revenue Code of 1986, as amended, if the aggregate principal amount of
all outstanding Debt of the Company and its Subsidiaries on a consolidated basis
determined in
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accordance with GAAP is less than 60% of Adjusted Total Assets, or (ii) the
payment of any dividend or other distribution within 60 days of the declaration
thereof if at the date of declaration thereof such payment would have complied
with the provisions of this Section 3.1(b).
(c) Maintenance of Total Unencumbered Assets. The Company and its
Subsidiaries will maintain at all times Total Unencumbered Assets of not less
than 150% of the aggregate outstanding principal amount of the Unsecured Debt of
the Company and its Subsidiaries on a consolidated basis in accordance with
GAAP.
(d) Company May Consolidate, Etc., Only on Certain Terms. In addition
to the provisions of Section 801 of the Indenture, the Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless immediately after giving effect to such
transaction, the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
would be permitted to incur at least $1.00 of additional Debt (other than Debt
between such Person and one or more of its Subsidiaries or between one or more
or its Subsidiaries) under the terms of Section 3.1(a) of this Supplemental
Indenture.
ARTICLE 4
OFFER TO REPURCHASE UPON CHANGE OF CONTROL
Section 4.1 Subject to Section 4.2, if a Change of Control occurs, the
Company shall make an offer (a "Change of Control Offer") to each Holder of the
Notes to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes at a purchase price, in cash, equal to 101% of
the aggregate outstanding principal amount of the Notes repurchased, plus
accrued and unpaid interest thereon, if any (subject to the right of Holders on
the relevant record date to receive interest due on the relevant interest
payment date), to the date of purchase (the "Change of Control Payment").
Within 10 days following any Change of Control, the Company shall mail
a written offer (an "Offer") to each Holder in accordance with the terms of
Section 1104 of the Base Indenture. The Offer shall contain all the information
required by applicable law to be included therein. The Offer shall also contain
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable such Holders to make an informed
decision with respect to the Change of Control Offer. The Offer shall contain
all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. The Offer shall also state:
(a) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment on the Change
of Control Payment Date, as defined below;
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(b) the purchase price and the purchase date, which shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), which date shall also be the date the Offer
expires;
(c) that any Note not tendered will continue to accrue interest;
(d) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date;
(e) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
close of business on the date specified in such notice, which shall not be
earlier than first to occur of (i) the thirtieth day following the date of such
notice and (ii) the third Business Day preceding the Change of Control Payment
Date;
(f) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing its election to have the Notes purchased;
(g) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; and
(h) that Holders electing to have a Note purchased pursuant to a Change
of Control Offer may elect to have Notes purchased in integral multiples of
$1,000 only.
On the Change of Control Payment Date, the Company shall, to the extent
lawful,
(i) accept for payment all Notes or portions of the Notes
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of the
Notes so tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased
by the Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered payment in an amount equal to the Change of Control Payment with
respect to the purchased Notes, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book
-12-
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered by such Holder, if any; provided, however, that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable.
The Company shall comply with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations to the extent those
laws and regulations are applicable to any Change of Control Offer. If the
provisions of any of the applicable securities laws or securities regulations
conflict with the provisions of this Section 4.1, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.1 by virtue of the compliance.
Notwithstanding the foregoing provisions of this Section 4.1, the
Company shall not be required to make or give notice of a Change of Control
Offer and, if made or given, shall not be required to repurchase Notes on the
related Change of Control Payment Date if, prior to the date on which such
notice or Change of Control Offer is required to be given or made or such Change
of Control Payment Date, as applicable
(i) the Company shall have irrevocably exercised its option to
redeem the Notes in whole pursuant to Section 2.1(d) of this
Supplemental Indenture; provided that if the Company shall default in
its obligation to redeem the Notes pursuant to such redemption on the
applicable Redemption Date, the Company shall become obligated to
commence a Change of Control Offer in accordance with this Article 4 on
such Redemption Date; or
(ii) giving effect to the related Change of Control, the
Moody's and Standard & Poor's shall have confirmed that the Notes are
rated "Ba3" (or its equivalent) or higher and "BB-" or higher,
respectively.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes properly tendered and not withdrawn under such
Change of Control Offer.
The provisions of the Indenture relating to the Company's obligation to
make an offer to repurchase the Notes as a result of a Change of Control
(including this Article 4 and clause (a) of Section 5.1) may be waived or
modified with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding.
Section 4.2. The provisions of Section 4.1 shall terminate and cease to
have further force or effect on or after the first date, if any, on which the
Notes shall have been rated "Baa3" (or its equivalent) or higher by Moody's and
"BBB-" (or its
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equivalent) or higher by Standard & Poor's.
ARTICLE 5
ADDITIONAL EVENTS OF DEFAULT
Section 5.1 For purposes of this Supplemental Indenture and the Notes,
in addition to the Events of Default set forth in Section 501 of the Indenture,
it shall also constitute an "Event of Default" if (a) the Company shall have
failed to consummate a Change of Control Offer in accordance with the provisions
of Article 4 of this Supplemental Indenture, or (b) one or more final judgments
or orders (not covered by insurance, treating any deductibles, self-insurance or
retention as not so covered) for the payment of money in excess of $10,000,000
in the aggregate for all such judgments or orders against the Company or any
Subsidiary and such judgments or orders shall not be paid or discharged, and
there shall be a period of 60 consecutive days after the final judgment or order
that causes such aggregate amount to exceed $10,000,000 million during which a
stay of enforcement of such final judgment(s) or order(s) are not in effect.
Section 5.2 Notwithstanding any provisions to the contrary in the
Indenture including, without limitation, Section 501(a) thereof, the failure to
pay the principal of or any premium on the Notes at its Maturity shall
constitute an "Event of Default".
Section 5.3 Notwithstanding any provisions to the contrary in the
Indenture including, without limitation, Section 501(e) thereof, the default
under any bonds, debentures, notes or other evidences of indebtedness of the
Company, or under any mortgage, indenture or other instrument of the Company
(including a default with respect to Securities of any series other than the
Notes) under which there may be issued or by which there may be secured any
indebtedness of the Company (or by one or more Subsidiaries, the repayment of
which the Company has guaranteed or for which the Company is directly
responsible or liable as obligor or guarantor), whether such indebtedness now
exists or shall hereafter be created, which default(s) shall constitute a
failure to pay an aggregate principal amount exceeding $10,000,000 of such
indebtedness when due and payable after the expiration of any applicable grace
period with respect thereto and shall have resulted in such indebtedness in an
aggregate principal amount exceeding $10,000,000 becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 10 days after there shall
have been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least a majority in
principal amount of the Outstanding Notes a written notice specifying such
default and requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder, shall constitute an Event of Default.
Section 5.4. Notwithstanding any provisions to the contrary in the
Indenture, upon the acceleration of the Notes in accordance with Section 502 of
the Indenture, the amount
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immediately due and payable in respect of the Notes shall equal the Outstanding
principal amount thereof, plus accrued and unpaid interest, plus the Make Whole
Amount.
ARTICLE 6
EFFECTIVENESS
Section 6.1 This Supplemental Indenture shall be effective for all
purposes as of the date and time this Supplemental Indenture has been executed
and delivered by the Company and the Trustee in accordance with Article Nine of
the Indenture. As supplemented hereby, the Indenture is hereby confirmed as
being in full force and effect.
ARTICLE 7
NOTICE TO TRUSTEE
Section 7.1 Notwithstanding anything to the contrary in the Indenture
including, without limitation, Section 1102 thereof, in connection with the
redemption at the election of the Company of less than all the Notes, the
Company shall notify the Trustee of the establishment of a Redemption Date and
the principal amount of Notes to be redeemed at least 45 days prior to such
Redemption Date unless a shorter period shall be satisfactory to the Trustee.
ARTICLE 8
MISCELLANEOUS
Section 8.1 In the event any provision of this Supplemental Indenture
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof or any provision of the Indenture.
Section 8.2 To the extent that any terms of this Supplemental Indenture
or the Notes are inconsistent with the terms of the Indenture, the terms of this
Supplemental Indenture or the Notes shall govern and supersede such inconsistent
terms.
Section 8.3 This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8.4 This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be executed as an instrument under seal in their
respective corporate names as of the date first above written.
SENIOR HOUSING PROPERTIES TRUST
By:___________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:___________________________
Name:
Title:
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EXHIBIT A
FORM OF NOTE
[Form of Face of Security]
SENIOR HOUSING PROPERTIES TRUST
8-5/8% Senior Notes due 2012
No. ____ $ ___________
Senior Housing Properties Trust, a real estate investment trust duly
organized and existing under the laws of Maryland (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_____________________________, or registered assigns, the principal sum of
___________________ Dollars ($_____________) on January 15, 2012, and to pay
interest thereon from December 20, 2001 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
January 15 and July 15 in each year, commencing July 15, 2002 at the rate of
8-5/8% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) 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 Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose 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 payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security 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 referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
THE ARTICLES OF AMENDMENT AND RESTATEMENT ESTABLISHING SENIOR HOUSING
PROPERTIES TRUST DATED SEPTEMBER 20, 1999, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME "SENIOR HOUSING PROPERTIES TRUST" 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
A-1
ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: SENIOR HOUSING PROPERTIES TRUST
By___________________________
Title:
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[STATE STREET BANK AND TRUST COMPANY],
As Trustee
By___________________________
Authorized Officer
A-2
[Form of Reverse of Security]
1. General. This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of December 20, 2001
(as amended, supplemented or otherwise modified from time to time, the "Base
Indenture"), as supplemented by a Supplemental Indenture No. 1, dated as of
December 20, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Supplemental Indenture" and the Base Indenture, as supplemented by
such Supplemental Indenture, the "Indenture"), each between the Company and
State Street Bank and Trust Company, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof.
2. Optional Redemption. The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, at any
time or from time to time, as a whole or in part, at the election of the
Company, at a redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed, (ii) accrued and unpaid interest to but excluding the
applicable Redemption Date and (iii) the Make-Whole Amount, if any.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
3. Defeasance. The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance with certain
conditions set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
5. Actions of Holders. 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 Securities
of each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security 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
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series 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 Securities of this series 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 Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
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6. Payments Not Impaired. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
7. Denominations, Transfer, Exchange. As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security 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 his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder 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.
8. Persons Deemed Owners. Prior to due presentment of this Security 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 Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
9. Defined Terms. All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
A-4
[ASSIGNMENT FORM]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _______ Custodian_______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ___________
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________Attorney
to transfer said security on the books of the Company with full power of
substitution in the premises.
Dated:_________________________ Signed:_____________________________________
Notice: The signature to this assignment
must correspond with the name as it appears
upon the face of the within security in
every particular, without alteration or
enlargement or any change whatever.
Signature Guarantee*:_______________________
* Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor acceptable to the
Trustee).
A-5
[FORM OF OPTION OF HOLDER TO ELECT PURCHASE]
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.2 of the Supplemental Indenture referred to in this Note pursuant to
the Company's Change of Control Offer, check this box: [__]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.2 of the Supplemental Indenture referred to in this Note
pursuant to the Company's Change of Control Offer, state the amount you elect to
have purchased (must be an integral multiple of $1,000): $__________________
PLEASE INSERT YOUR SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER:
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Dated:_________________________ Signed:_____________________________________
Notice: The signature to this election must
correspond with the name as it appears upon
the face of the within security in every
particular, without alteration or
enlargement or any change whatever.
Signature Guarantee*:_______________________
* Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor acceptable to the
Company).
A-6