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MEDITRUST CORPORATION
[OR MEDITRUST OPERATING COMPANY]
INDENTURE
Dated as of November 1, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST COMPANY,
AS TRUSTEE
Providing for Issuance of Securities in Series
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CROSS-REFERENCE TABLE
MEDITRUST
Trust Indenture
Act Section Indenture
---------------- ---------
ss.310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.08; 7.10; 13.02
(c) Not Applicable
ss.311(a) 7.11
(b) 7.11
(c) Not Applicable
ss.312(a) 2.12
(b) 13.03
(c) 13.03
ss.313(a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 13.02
(d) 7.06
ss.314(a) 4.02; 13.02
(b) Not Applicable)
(c)(l) 13.04
(c)(2) 13.04
(c)(3) Not Applicable
(d) Not Applicable
(e) 13.05
(f) Not Applicable
ss.315(a) 7.01(b)
(b) 7.05; 13.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.10
ss.316(a)(last sentence) 13.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) Not Applicable
(b) 6.06
ss.317(a)(1) 6.07
(a)(2) 6.08
(b) 2.05
ss.318(a) 13.01
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . 5
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . 6
ARTICLE 2
THE SECURITIES
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.02. Amount Unlimited; Issuable in Series . . . . . . . . . . . 6
SECTION 2.03. Execution and Authentication. . . . . . . . . . . . . . . . 8
SECTION 2.04. Registrar and Agents. . . . . . . . . . . . . . . . . . . . 9
SECTION 2.05. Paying Agent to Hold Money in Trust . . . . . . . . . . . . 9
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . 10
SECTION 2.07. Replacement Securities. . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. Outstanding Securities. . . . . . . . . . . . . . . . . . . 12
SECTION 2.09. Temporary Securities. . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.11. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.12. Securityholder Lists. . . . . . . . . . . . . . . . . . . . 14
SECTION 2.13. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 14
SECTION 2.14. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.15. Provisions in Global Security . . . . . . . . . . . . . . . 15
ARTICLE 3
REDEMPTION
SECTION 3.01. Optional Redemption . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Selection of Securities to be Redeemed. . . . . . . . . . . 17
SECTION 3.03. Notice of Redemption by the Company . . . . . . . . . . . . 17
SECTION 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . 18
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . 18
SECTION 3.06. Securities Redeemed in Part . . . . . . . . . . . . . . . . 18
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of the Securities . . . . . . . . . . . . . . . . . 18
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.03. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . 19
--i--
SECTION 4.04. Notice of Default . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.05. Compliance Certificates . . . . . . . . . . . . . . . . . . 20
SECTION 4.06. Limitation on Dividends and Other Distributions . . . . . . 20
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. When Company may Merge, etc . . . . . . . . . . . . . . . . 20
SECTION 5.02. Successor Company or Trust Substituted. . . . . . . . . . . 21
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.04. Waiver of Defaults and Events of Default. . . . . . . . . . 24
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.06. Rights of Holders to Receive Payment. . . . . . . . . . . . 24
SECTION 6.07. Collection Suit by Trustee. . . . . . . . . . . . . . . . . 24
SECTION 6.08. Trustee May File Proofs of Claim. . . . . . . . . . . . . . 25
SECTION 6.09. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.10. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 26
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . 28
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . 28
SECTION 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 28
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . 29
SECTION 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . . 29
SECTION 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . 30
SECTION 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . . . 31
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . 31
SECTION 7.11. Preferential Collection of Claims Against Company . . . . . 33
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Satisfaction, Discharge and Defeasance
of the Securities . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.02. Satisfaction and Discharge of Indenture . . . . . . . . . 33
--ii--
SECTION 8.03. Survival of Certain Obligations. . . . . . . . . . . . . . 33
SECTION 8.04. Application of Trust Money . . . . . . . . . . . . . . . . 33
SECTION 8.05. Paying Agent to Repay Monies Held. . . . . . . . . . . . . 34
SECTION 8.06. Return of Unclaimed Monies . . . . . . . . . . . . . . . . 34
SECTION 8.07. Reinstatement . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . 35
SECTION 9.02. Supplemental Indentures With Consent of Holders. . . . . . 36
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . 37
SECTION 9.04. Revocation and Effect of Consents . . . . . . . . . . . . . 37
SECTION 9.05. Notation on or Exchange of Securities . . . . . . . . . . . 38
SECTION 9.06. Effect of Supplemental Indentures . . . . . . . . . . . . . 38
SECTION 9.07. Reference in Securities to Supplemental Indentures . . . . 38
ARTICLE 10
CONVERSION OF SECURITIES
SECTION 10.01. Right of Conversion; Exercise . . . . 39
SECTION 10.02. Issuance of Shares or other Securities on Conversion . . . 39
SECTION 10.03. No Adjustment for Interest or Dividends . . . . . . . . . 40
SECTION 10.04. Adjustment of Conversion Price. . . . . . . . . . . . . . . 40
SECTION 10.05. Notice of Adjustment of Conversion Price. . . . . . . . . . 43
SECTION 10.06. Notice of Certain Corporate Action . . . . . . . . . . . . 44
SECTION 10.07. Taxes on Conversions. . . . . . . . . . . . . . . . . . . . 45
SECTION 10.08. Fractional Shares . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.09. Cancellation of Converted Securities. . . . . . . . . . . . 46
SECTION 10.10. Provisions in Case of Consolidation,
Merger or Sale of Assets . . . . . . . . . . . . . . . . . 46
SECTION 10.11. Disclaimer by Trustee of Responsibility
for Certain Matters. . . . . . . . . . . . . . . . . . . . 47
SECTION 10.12. Covenant to Reserve Shares. . . . . . . . . . . . . . . . . 47
ARTICLE 11
SUBORDINATION; SENIORITY
SECTION 11.01. Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.02. Company Not to Make Payments with Respect to
Securities in Certain Circumstances. . . . . . . . . . . . 48
--iii---
SECTION 11.03. Subrogation of Securities . . . . . . . . . . . . . . . . . 51
SECTION 11.04. Authorization by Holders of Securities . . . . . . . . . . 52
SECTION 11.05. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.06. Trustee's Relation to Senior Indebtedness . . . . . . . . . 53
SECTION 11.07. No Impairment of Subordination. . . . . . . . . . . . . . . 53
SECTION 11.08. Article 11 Not to Prevent Events of Default . . . . . . . . 54
SECTION 11.09. Paying Agents other than the Trustee. . . . . . . . . . . . 54
SECTION 11.10. Securities Senior to Subordinated Indebtedness . . . . . . 54
ARTICLE 12
SINKING FUND
SECTION 12.01. Mandatory and Optional Sinking Fund Payments. . . . . . . . 54
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities . . . 55
SECTION 12.03. Redemption of Securities for Sinking Funds. . . . . . . . . 55
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls. . . . . . . . . . . . . . . 56
SECTION 13.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.03. Communications by Holders with other Holders . . . . . . . 57
SECTION 13.04. Certificate and Opinion as to Condition Precedent . . . . 57
SECTION 13.05. Statements Required in Certificate and Opinion . . . . . . 58
SECTION 13.06. Rules by Trustee and Agents. . . . . . . . . . . . . . . . 58
SECTION 13.07. Record Date. . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.08. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.09. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.10. No Adverse Interpretation of Other Agreements. . . . . . . 59
SECTION 13.11. No Recourse Against Others . . . . . . . . . . . . . . . . 59
SECTION 13.12. Successors . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.13. Multiple Counterparts. . . . . . . . . . . . . . . . . . . 59
SECTION 13.14. Table of Contents, Headings, etc . . . . . . . . . . . . . 59
SECTION 13.15. Severability . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.16. Trustee Dealings with the Company. . . . . . . . . . . . . 59
Signatures
--iv--
INDENTURE dated as of November 1, 1997 between Meditrust Corporation
[or Meditrust Operating Company], a Delaware corporation ("Company"), and State
Street Bank and Trust Company, a Massachusetts trust company ("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its securities (hereinafter called the
"Securities") evidencing its unsecured indebtedness, to be issued in one or more
fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, Conversion Agent, co-registrar
or agent for service of notices and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal or
State law for the relief of debtors.
"Board of Trustees of the Company" means the Board of Trustees of the
Company or any committee of the Board authorized to act on behalf of the Board
of Trustees of the Company.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Trustees of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means any and all shares or other equivalents (however
designated) of common stock.
"Closing Price" means with respect to the shares of common stock of the
Company on any day, (i) the last reported sales price regular way or, in case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York Stock Exchange,
or (ii) if the shares of common stock are not listed or admitted to trading on
the New York Stock Exchange, the last reported sales price regular way, or in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, on the principal national securities
exchange on which the shares of common stock are listed or admitted to trading,
or (iii) if the shares of common stock are not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the Indenture and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at Boston,
Massachusetts.
"Custodian" means any receiver, trustee, liquidator or similar official
under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issued in
whole or in part in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 2.02 until a successor Depositary
shall have become such pursuant to the applicable procedures of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one Depositary with
respect to the Securities of any such series, "Depositary" shall mean the
Depositary with respect to the Securities of that series.
--2--
"Dollar" or "$" means the lawful money of the United States of America.
"Global Security" means a Security in the form prescribed in Section 2.15
evidencing all or part of a Series of Securities, issued to the Depositary for
such Securities or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness," as applied to any Person, means, without duplication (i)
all indebtedness for borrowed money whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with respect
to leases that is properly classified as a liability on a balance sheet in
accordance with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit, (iv) any balance owed for
all or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof (except any such balance that constitutes (a) a
trade payable or an accrued liability arising in the ordinary course of business
or (b) a trade draft or note payable issued in the ordinary course of business
in connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such person prepared in
accordance with generally accepted accounting principles, and any deferral,
amendment, renewal, extension, supplement or refunding of any of the foregoing
indebtedness; provided, however, that, in computing the "Indebtedness" of any
Person, there shall be excluded any particular indebtedness if, upon or prior to
the maturity thereof and at the time of determination of such indebtedness,
there shall have been deposited with a depository in trust money (or evidences
of indebtedness if permitted by the instrument creating such indebtedness) the
necessary amount to pay, redeem or satisfy such indebtedness as it becomes due,
and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means this Indenture as originally executed or, if amended or
supplemented as provided in Article 9, as amended or supplemented from time to
time.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or the Controller of the Company.
--3--
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller
of the Company. See Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 13.04 and 13.05.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption by the Company pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as
specified in such Security.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" means the principal, premium, if any, and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of Indebtedness of the Company for money borrowed
(including without limitation any Securities), whether any such Indebtedness
exists as of the date of this Indenture or shall hereafter be created, incurred,
assumed or guaranteed other than Subordinated Indebtedness.
"Subordinated Indebtedness" means the principal, premium, if any, and
interest on any Indebtedness of the Company which by its terms is expressly
subordinated in right of payment to the Senior Indebtedness.
"Subsidiary" means a corporation the majority of whose voting stock is
owned by the Company or a subsidiary of the Company. Voting Stock is Capital
Stock having voting power under ordinary circumstances to elect directors.
--4--
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb) as amended by the Trust Indenture Reform Act of 1990 and as in
effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Company Order" 2.03
"Conversion Agent" 2.04
"current market price" 10.04
"Event of Default" 6.01
"Legal Holiday" 13.08
"Paying Agent" 2.04
"Registrar" 2.04
"Rule 13e-3 Transaction" 10.06
"U.S. Government Obligations" 8.01
SECTION 1.03 Incorporation by Reference to Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the indenture securities.
--5--
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rules have the meanings
assigned to them therein.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting
principles in effect as of the time as to which such accounting principles
are to be applied;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Forms Generally.
The Securities of each series shall be in substantially the form (including
any global form that is not inconsistent with this Indenture) either as shall be
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such variations as are
required or permitted by this Indenture (including such other provisions as are
necessary to reflect the global form of any Security, and the designation of a
Depositary for such Global Security) and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities as evidenced by their
execution of the Securities.
SECTION 2.02 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate or one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
--6--
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture and such Officers' Certificate or indenture supplemental
hereto (except 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 this Indenture);
(3) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable;
(4) the rate or rates, if any, at which the Securities of the series
shall bear interest (or the method of determining such rate or rates), the
date or dates from which such interest shall accrue, date or dates on which
such interest shall be payable and the record date or dates for the
interest payable;
(5) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(6) the period or periods within which or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Securityholder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) the terms pursuant to which Securities of any one series are or
may be converted into shares of common stock or Securities of another
series of the Company;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(10) whether any Securities of the series are to be issued in whole or
in part in the form of one or more Global Securities and, if so, the
Depositary for such Global Security or Securities (which Depositary shall
be, if then required by applicable law or regulation, a clearing agency
registered
--7--
under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation) and whether beneficial owners of
interests in such Global Security or Securities may exchange such interests
for Securities of such series and any authorized form and denomination of
such Securities and the circumstances under which any such exchanges may
occur (if other than in the manner provided in Section 2.06);
(11) the identity of each Paying Agent, Conversion Agent and Registrar
for the Securities of such series; and
(12) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
If any of the terms of a series of Securities are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery to the Trustee
of the Officers' Certificate or supplemental indenture setting forth the terms
of the series.
SECTION 2.03 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon written
order or orders of the Company signed by two Officers or by an Officer and an
Assistant Treasurer of the Company (a "Company Order").
The Trustee may appoint an authenticating agent to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture
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to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
The Securities may be issued in registered form without coupons. The
Securities shall be issuable only in denominations of $1,000 principal amount
and any integral multiple thereof.
Upon any endorsement by the Trustee of the Securities of any series
pursuant to the provisions of Section 2.15, the Trustee shall promptly inform
the Depositary with respect to the Securities of such series of such
endorsement.
SECTION 2.04 Registrar and Agents.
The Company shall maintain an office or agency where Securities of any
series may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities of any series may be
presented for payment ("Paying Agent"), an office or agency where Securities of
any series may be presented for conversion ("Conversion Agent") and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities of each series and of their transfer and exchange. The Company
may have one or more co-registrars, one or more additional Paying Agents and one
or more additional Conversion Agents. The Company or any Subsidiary may act as
Paying Agent and/or Conversion Agent. The term "Paying Agent" includes any
additional paying agent and the term "Conversion Agent" includes any additional
conversion agent.
The Company may change any Paying Agent, Registrar, Conversion Agent or
co-registrar on sixty (60) days' prior written notice to the Trustee. The
Company shall notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar, Paying Agent, Conversion
Agent or agent for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such.
The Company and the Trustee initially appoint the Trustee as Registrar,
Paying Agent, Conversion Agent and agent for service of notices and demands.
SECTION 2.05 Paying Agent to Hold Money in Trust.
On or before 11:00 a.m., Eastern Standard or Daylight Savings Time, as
applicable, on each due date of the principal of, premium if any, and interest
on any Securities of any series, the Company shall deposit with each Paying
Agent a sum sufficient to pay such principal, premium, if any, and interest so
becoming due. The Company shall require each Paying Agent other than the Trustee
to agree in writing that it will hold in trust for the
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benefit of Holders of Securities of any series and the Trustee all money held by
the Paying Agent for the payment of principal of, premium if any, or interest on
the Securities of such series and to notify the Trustee of any default by the
Company (or any other obligor on the Securities of such series) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall on
or before each due date of the principal of, premium, if any, or interest on any
Securities of any series segregate the money and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and the Trustee may at any time during the continuance of
any payment default, upon written request to a Paying Agent, require such Paying
Agent to forthwith pay to the Trustee all sums so held in trust by such Paying
Agent. Upon doing so, the Paying Agent (other than the Company or a Subsidiary
thereof) shall have no further liability for the money.
SECTION 2.06 Transfer and Exchange.
When a Security of any series is presented to the Registrar or a
co-registrar with a request to register the transfer, the Registrar or
co-registrar shall register the transfer as requested and when Securities of any
series are presented to the Registrar or a co-registrar with a request to
exchange them for a like aggregate principal amount of Securities of such series
in other authorized denominations, the Registrar shall make the exchange as
requested, provided that every Security presented or surrendered for
registration or transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by the Holder thereof or his attorney-in-fact duly authorized in
writing. To permit registrations of transfers and exchanges, the Company shall
issue and the Trustee or any authenticating agent shall authenticate Securities
of such series at the Registrar's or co-registrar's written request. No service
charge shall be made for any registration of transfer or exchange of Securities
but the Company, the Trustee and the Registrar or any co-registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto, but this provision shall not apply to any
exchange pursuant to Sections 2.09, 3.06, 9.05 or 10.02 not involving any
transfer.
The Registrar shall not be required (i) to issue, register the transfer of,
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of such series
for redemption under Section 3.02 and ending at the close of business on the day
of selection, (ii) to register the transfer or exchange of any Security of any
series so selected for redemption in whole or in part, except the unredeemed
portion of any Security being
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redeemed in part, or (iii) to register the transfer or exchange of any
Securities of any series during a period beginning at the opening of business 15
days before the day of any selection of Securities of such series for redemption
under Section 3.02 and ending at the close of business on the day interest is to
be paid on Securities of such series.
If at any time the Depositary for any Securities of a series issued in the
form of one or more Global Securities notifies the Company that it is unwilling
or unable to continue as Depositary for such Securities or if at any time the
Depositary for the Securities of such series shall no longer be eligible under
Section 2.02 of this Indenture, the Company shall appoint a successor Depositary
with respect to such Securities. If a successor Depositary for such Securities
is not appointed by the Company within ninety (90) days after the Company
receives such notice or becomes aware of such ineligibility or if the Company's
relationship with the Depositary is terminated and no successor Depositary has
been appointed, the Company's election to issue Global Securities pursuant to
Section 2.02 shall no longer be effective with respect to such Securities and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form, in
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. The
Company shall notify the Depositary and the Trustee of the date and time of such
exchange in a Company Order. The Depositary shall surrender the Global
Securities to the Trustee as the Company's agent for such purpose as shall be
specified in the Company Order. The Company will execute, and the Trustee, upon
receipt of the Global Security from the Depository and a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for such
Global Security or Securities.
Unless and until a Global Security is exchanged in whole or in part for
Securities in definitive form in accordance with the provisions of this
Indenture, a Global Security may not be transferred, except as a whole, by the
Depositary
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to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor of such Depositary or nominee. Unless otherwise
provided as contemplated by Section 2.02 of this Indenture, the Depositary may
not sell, assign, transfer or otherwise convey any common stock in a Global
Security evidencing all or part of the Securities of such series unless such
common stock is in an amount equal to an authorized denomination for Securities
of such series.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.02 of this Indenture, any Global Security shall be
exchangeable only as provided in this paragraph. If the owners of common stocks
in a Global Security of any series are entitled to exchange such interests for
Securities of such series, as may be specified in accordance with Section 2.02
of this Indenture, then without unnecessary delay upon receipt of notice
therefrom so specified as contemplated by Section 2.02 of this Indenture but in
any event not later than one business day prior to the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of such series, in authorized denominations, and in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such Global Security shall be surrendered by the
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of such series, without
charge, and the Trustee shall authenticate and deliver, in exchange for each
portion of such Global Securities, a like aggregate principal amount of
definitive Securities of the same series in authorized denominations as the
portion of such Global Securities to be so exchanged; provided, however, that no
such exchanges may occur for a period of 15 days immediately preceding the
earliest date on which such interests may be so exchanged.
SECTION 2.07 Replacement Securities.
If a mutilated Security of any series is surrendered to the Trustee or if
the Holder of a Security of any series presents evidence to the satisfaction of
the Company and the Trustee that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series if the requirements of the Trustee and the
Company are met. An indemnity bond may be required by the Company or the Trustee
that is sufficient in the judgment of the Company to protect the Company and is
sufficient in the judgment of the Trustee to protect the Trustee or any Agent
from any loss which it may suffer if a Security of such series is replaced. The
Company and the Trustee may charge the Holder in question for any expense in
replacing a Security.
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SECTION 2.08 Outstanding Securities.
Securities of any series outstanding at any time are all Securities of such
series authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not
outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or a Subsidiary) holds on a
Redemption Date or maturity date money deposited with it by or on behalf of the
Company sufficient to pay the principal of and accrued interest on Securities of
any series payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security (provided, however that Securities held by the
Company shall not be considered to be outstanding for purposes of any voting by
the Holders of any Securities).
SECTION 2.09 Temporary Securities.
Until definitive Securities of any series are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities of any series shall be substantially in the
form of definitive Securities of such series but may have non-material
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities of any series in exchange for temporary
Securities of such series upon receipt of a Company Order. Until so exchanged,
temporary Securities of any series represent the same rights as definitive
Securities of such series. At the time of delivery of the temporary Securities
to the Trustee for authentication, the Company shall also provide to the Trustee
an Officer's Certificate to the effect that the temporary Securities of any
series meet the requirements of this Section 2.09.
SECTION 2.10 Cancellation.
The Company at any time may deliver Securities of any series to the Trustee
for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange, payment or conversion. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment or conversion and destroy cancelled
Securities and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee
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in writing prior to such destruction to deliver cancelled Securities to the
Company. Subject to Sections 2.07, 3.06 and the second paragraph of Section
10.02, the Company may not issue Securities to replace Securities that it has
previously paid or delivered to the Trustee for cancellation or that a
Securityholder has converted pursuant to Article 10 hereof.
SECTION 2.11 Defaulted Interest.
If the Company defaults in a payment of interest on Securities of any
series, it shall pay the defaulted interest to the Persons who are Holders of
the Securities of such series on a subsequent special record date. After the
deposit by the Company with the Trustee of money sufficient to pay such
defaulted interest, the Trustee shall fix the special record date and payment
date. Each such special record date shall be not less than 10 days prior to such
payment date. Each such payment date shall be not more than 60 days after the
deposit by the Company of money to pay the defaulted interest. At least 15 days
before the special record date, the Company shall mail to each Holder of a
Security of such series a notice that states the special record date, the
payment date, and the amount of defaulted interest to be paid. The Company may
pay defaulted interest in any other lawful manner if, after prior notice to the
Trustee, such payment shall be deemed operationally practicable by the Trustee.
SECTION 2.12 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
current Holders of Securities of each series. If the Trustee is not the
Registrar, the Company or other obligor, if any, shall furnish to the Trustee at
least seven Business Days prior to each semiannual interest payment date and at
such other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of current Holders of Securities of each series. The Trustee may destroy any
such list upon receipt of a replacement list. The Paying Agent will solicit from
each Securityholder a certification of social security number or taxpayer
identification number in accordance with its customary practice and as required
by law, unless the Paying Agent is in possession of such certification. Each
Paying Agent is authorized to impose back-up withholding with respect to
payments to be made to Securityholders to the extent required by law.
SECTION 2.13 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the person in whose name a Security is registered as the owner of such
Security and neither the Company,
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the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 2.14 CUSIP Number.
The Company may use a "CUSIP" number when issuing Securities of any series,
and if so, the Trustee may use the CUSIP number in notices of redemption or
exchange as a convenience to Holders of Securities of such series; provided that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities.
SECTION 2.15 Provisions in Global Security.
(a) If Securities of a series are issuable in whole or in part as Global
Securities, as may be specified in accordance with Section 2.02 of this
Indenture, then any such Global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may also provide
that it represents the aggregate principal amount of outstanding Securities from
time to time endorsed thereon and that the aggregate principal amount of
outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Global Securities may be permanent or temporary. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the principal amount, of outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee and the Depositary pursuant to Section 2.03 or Section
2.09. Subject to the provisions of Section 2.03 and, if applicable, Section
2.09, the Depositary shall deliver and redeliver any permanent Global Security
in the manner and upon written instructions given by the Person or Persons
specified therein or in the applicable Company Order.
(b) Notwithstanding the other provisions of this Indenture, unless
otherwise specified in accordance with Section 2.02, payment of principal of
(and premium, if any) and interest, if any, on any permanent Global Securities
shall be made directly to the Depositary.
(c) Notwithstanding the provisions of Section 2.13 of this Indenture, the
Company, the Trustee and any agent of the Company or the Trustee shall treat the
owners of common stock of such Global Security as the Holders of such principal
amounts of outstanding Securities represented by a Global Security as shall be
specified in writing by the Depositary and delivered to the Company and the
Trustee with respect to such Global Security, but
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only for purposes of obtaining any consents or directions required to be given
by the Holders pursuant to this Indenture.
(d) Unless otherwise provided as contemplated by Section 2.02, a Global
Security of any series shall provide that, in addition to the provisions
established pursuant to Sections 2.01, 2.02 and 2.15(a) through (c), the
Depositary will not sell, assign, transfer or otherwise convey any common stock
in such Global Security unless such common stock is in an amount equal to an
authorized denomination for Securities of such series, and the Depository, by
accepting such Global Security, agrees to be bound by such provision. Any Global
Security shall also contain such other provisions as are necessary to reflect
the global form of such Security and the designation of a Depositary for such
Global Security.
ARTICLE 3
REDEMPTION
SECTION 3.01 Right of Redemption.
(a) The Company may, at its option, redeem Securities of any series as
permitted or required by the terms of such Securities, which redemption shall be
made in accordance with the terms of such Securities and this Article. In the
case of Securities subject to the provisions of Article X hereof, the Company
may also redeem the Securities of any Series, in whole or from time to time in
part, at any time in order to protect Meditrust Corporation's status as a real
estate investment trust ("REIT"), at the option of the Company at a redemption
price equal to 100% of the principal amount plus accrued interest to the date of
redemption. Notwithstanding any other provision of this Article 3, with respect
to redemptions to protect Meditrust Corporation's status as a REIT, the
Securities of any series will be immediately redeemable, at the option of and
upon notice by the Company to the extent deemed sufficient in the opinion of the
Board of Trustees of the Company to prevent the Holder of such Securities or any
other Person having an interest therein if the Securities were thereupon
converted from being deemed to own shares of common stock in excess of the
limits prescribed in Meditrust Corporation's Certificate of Incorporation, as
amended. The election of the Company to redeem any Securities pursuant to this
Section shall be evidenced by a Board Resolution. The Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and, in the case of any redemption at the election of the Company of less
than all the Securities of any series, of the principal amount of Securities of
that series to be redeemed.
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(b) If the Company wants to redeem the Securities of any series pursuant to
the redemption provisions of the Securities of such series, it shall notify the
Trustee of the Redemption Date and the principal amount of Securities of such
series to be redeemed. The notice shall be in writing and accompanied by an
Officers' Certificate stating that the redemption complies with the provisions
of this Indenture and the provisions of the applicable Board Resolution, if any,
and in the Securities of such series.
The Company shall give each notice provided for in this Section 3.01 in
writing and at least 45 but not more than 60 days before the Redemption Date or
such other period as the Company and the Trustee may agree.
SECTION 3.02 Selection of Securities to be Redeemed.
If any part of a series of Securities is to be redeemed, the Trustee shall
select the Securities of such series to be redeemed pro rata or by lot. The
Trustee shall promptly notify the Company of the Securities of such series to be
so called for redemption. The Trustee shall make the selection from Securities
of such series outstanding and not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities that have
denominations larger than $1,000 principal amount. Securities and portions of
them that it selects shall be in principal amounts of $1,000 or multiples
thereof. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee's selection of Securities for redemption by any method authorized by
this Section 3.02 shall be conclusively deemed reasonable.
SECTION 3.03 Notice of Redemption by the Company.
At least 30 days but not more than 60 days before a Redemption Date with
respect to Securities of any series, the Company shall mail a notice of
redemption by first-class mail to each Holder of Securities of such series to be
redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent and the Conversion
Agent;
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(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to
accrue on and after the Redemption Date provided monies are on
deposit with the Paying Agent for payment of the Redemption Price
as provided in Section 3.05; and
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new
Security or Securities of the same series in principal amount
equal to the unredeemed portion thereof will be issued.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. If a CUSIP number
is listed in such notice or printed on the Security, the notice shall state that
no representation is made as to the correctness or accuracy of such CUSIP
number.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the applicable Redemption Date and at the applicable
Redemption Price. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date
provided monies are on deposit with the Paying Agent for payment of the
Redemption Price as provided in Section 3.05
SECTION 3.05 Deposit of Redemption Price.
On or before 11:00 a.m., Eastern Standard or Daylight Savings Time, as
applicable, on the Redemption Date with respect to any series of Securities, the
Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
is the Paying Agent, shall segregate and hold in trust or cause such Subsidiary
to segregate and hold in trust) in immediately available funds money sufficient
to pay the Redemption Price of and accrued interest on all Securities of such
series to be redeemed on that date. The Trustee or the Paying Agent shall return
to the Company any money so received and not required for that purpose.
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security of any series that is redeemed in part, the
Trustee shall authenticate for the Holder, at the expense of the Company, a new
Security of such series equal in
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principal amount to the unredeemed portion of the Security surrendered. If a
Global Security is so surrendered, such new Security so issued shall be a new
Global Security.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of the Securities.
The Company shall pay the principal of, premium, if any, and interest on
the Securities of any series on the dates and in the manner provided in the
Securities of such series and this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due if
the Trustee or Paying Agent (other than the Company or a Subsidiary) holds on
that date money designated for and sufficient to pay the installment. The
Company shall pay interest on overdue principal and premium, if any, at the rate
borne by the Security; it shall pay interest, including post-petition interest
in the event of a proceeding under the Bankruptcy Laws, on overdue installments
of interest at the same rate to the extent lawful.
SECTION 4.02 SEC Reports.
The Company shall file with the Trustee, promptly after it files them with
the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended. The Company shall also comply with the other provisions of TIA ss.
314(a).
So long as any Securities of any series remain outstanding, the Company
shall cause its annual reports to shareholders (containing audited financial
statements) and any other financial reports furnished by it to shareholders to
be mailed to the current Holders at their addresses appearing in the register of
Securities of any series maintained by the Registrar.
SECTION 4.03 Waiver of Stay, Extension or Usury Laws.
The Company expressly waives (to the extent that it may lawfully do so) any
stay or extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal of (premium,
if any) or interest on Securities of any series as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture.
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SECTION 4.04 Notice of Default.
The Company will, so long as any Securities of any series are outstanding,
deliver to the Trustee, within 10 days of becoming aware of any Default or Event
of Default in the performance of any covenant, agreement or condition in this
Indenture, an Officers' Certificate specifying such Default or Event of Default.
SECTION 4.05 Compliance Certificates.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31), a
written statement signed by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company
has kept, observed, performed and fulfilled in all material respects each
and every condition and covenant contained in this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
condition or covenant, specifying each such default known to him and the
nature and status thereof.
The Company will give the Trustee written notice of a change in the fiscal
year of the Company, within a reasonable time after such change is effected.
SECTION 4.06 Limitation on Dividends and Other Distributions.
The Company will not declare or pay any dividends or make any distribution
to holders of its Capital Stock (other than dividends or distributions payable
in Capital Stock of the Company), or purchase, redeem or otherwise acquire or
retire for value any of its Capital Stock or permit any Subsidiary to purchase,
redeem or otherwise acquire or retire for value any of the Company's Capital
Stock if at the time of such action an Event of Default has occurred and is
continuing or would exist immediately after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section 4.06 will not
prevent: (i) the payment of any dividend within 60 days after the date of
declaration when the payment would have complied with the foregoing provisions
on the date of declaration; or (ii) the retirement of any share of the Company's
Capital Stock by exchange for, or out of the proceeds of the
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substantially concurrent sale (other than to a Subsidiary) of, other shares of
its Capital Stock.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, another Person in any transaction in which
the Company is not the continuing or surviving entity unless (i) the resulting,
surviving or transferee Person is a corporation or trust which assumes by
supplemental indenture all the obligations of the Company under the Securities
of each series and this Indenture; (ii) such corporation or trust is organized
and existing under the laws of the United States, a State thereof or the
District of Columbia although it in turn may be owned by a foreign entity; (iii)
immediately after giving effect to such transaction no Default or Event of
Default shall have happened and be continuing, and the Officers' Certificate
referred to in the following clause reflects that such Officers are not aware of
any such Default or Event of Default that shall have happened and be continuing,
and (iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with this Indenture,
and thereafter all obligations of the Company shall terminate.
SECTION 5.02 Successor Company or Trust Substituted.
Upon any consolidation or merger, or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.01, the successor
corporation or trust formed by such consolidation or into which the Company is
merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation or trust has been named as
the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if, with respect to any series of Securities:
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(1) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable and the default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of (and
premium, if any, on) any Security of such series when the same becomes due
and payable at maturity, upon redemption or otherwise, and the default
continues for five Business Days;
(3) the Company fails to comply with any of its other agreements in
the Securities of such series or this Indenture and the default continues
for the period and after the notice specified in the last paragraph of this
Section 6.01;
(4) there shall be a default under any bond, debenture, note or other
evidence of Indebtedness or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness of the Company or any Subsidiary, whether any
such Indebtedness now exists or shall hereafter be created, if (a) either
(i) such event of default results from the failure to pay any such
Indebtedness at maturity or (ii) as a result of such event of default, the
maturity of such Indebtedness has been accelerated prior to its expressed
maturity and such acceleration shall not be rescinded or annulled or the
accelerated amount paid within ten days after notice to the Company of such
acceleration, or such Indebtedness having been discharged and (b) the
principal amount of such Indebtedness, together with the principal amount
of any other such Indebtedness in default for failure to pay principal or
interest thereon, or the maturity of which has been so accelerated,
aggregates $10,000,000 or more;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
proceeding,
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(B) appoints a Custodian of the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days;
provided, however, that a default under this Section 6.01 is not an Event
of Default with respect to any series of Securities if a specified event is
either applicable to a particular series or it is specifically deleted or
modified in the supplemental indenture creating such series of Securities
or in the form of Security for such series.
A default under clause (3) is not an Event of Default with respect to any
series of Securities until the Trustee notifies the Company, or the Holders of a
majority in principal amount of the Securities of such series then outstanding
notify the Company and the Trustee in writing, of the default and the Company
does not cure the default within 60 days after receipt of such notice. The
notice must specify the default, demand that it be remedied and state that the
notice is a "Notice of Default." The Trustee shall give such notice to the
Company if directed to do so in writing by the Holders of a majority in
principal amount of the Securities of such series then outstanding. Such notice
by the Trustee shall not be deemed to be a certification by the Trustee as to
whether an Event of Default has occurred.
SECTION 6.02 Acceleration.
If an Event of Default occurs and is continuing with respect to any series
of Securities, the Trustee by notice to the Company, or the Holders of a
majority in principal amount of the Securities of such series then outstanding
by notice to the Company and the Trustee, may declare to be due and payable
immediately the principal amount of the Securities of such series plus accrued
interest to the date of acceleration. Upon any such declaration, such amount
shall be due and payable immediately, and upon payment of such amount all of the
Company's obligations with respect to the Securities of such series, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the outstanding Securities of such series by written notice
to the Trustee may rescind an acceleration and its consequences if (x) all
existing Events of Default with respect to the Securities of such series, other
than the non-payment of the principal of the Securities of such series, which
have become due solely by such declaration of acceleration, have been cured or
waived, (y) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal which has become
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due otherwise than by such declaration of acceleration, has been paid, and (z)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal (and premium, if any) or interest on the Securities of such series or
to enforce the performance of any provision of the Securities of such series or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Defaults and Events of Default.
Subject to Section 9.02, the Holders of a majority in principal amount of
the Securities of any series then outstanding, on behalf of the Holders of the
Securities of such series, by written notice to the Trustee may waive a Default
or Event of Default with respect to the Securities of such series and its
consequences. When a Default or Event of Default is waived with respect to the
Securities of any series, it is cured and ceases.
SECTION 6.05 Control by Majority.
The Holders of a majority in principal amount of the Securities of any
series then outstanding may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on it with respect to the Securities of such
series. The Trustee, however, may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Securityholders or that may involve the
Trustee in personal liability or for which the Trustee does not have adequate
indemnification pursuant to Section 7.01(e); provided, that, the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.06 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of any series to receive
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payment of principal of, premium, if any, and interest on such Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder of any Security to convert such Security or to bring suit for the
enforcement of such right shall not be impaired or affected without the written
consent of the Holder.
SECTION 6.07 Collection Suit by Trustee.
If an Event of Default with respect to any series of Securities in payment
of interest or principal (and premium, if any) specified in Section 6.01(1) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company or any other obligor on
the Securities of such series for the whole amount of unpaid principal (and
premium, if any) and accrued interest remaining unpaid on the Securities of such
series, together with interest on overdue principal (and premium, if any) and to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate borne by the Securities of
such series and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.08 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of
Securities of any series allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities of any series), its creditors
or its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same. Any Custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities of any series, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceedings.
SECTION 6.09 Priorities.
If the Trustee collects any money pursuant to this Article 6 with respect
to the Securities of any series, it shall pay out the money in the following
order:
FIRST: to the Trustee for amounts due under Section 7.07; and
SECOND: to Holders of Securities of such series for amounts due and unpaid
on the Securities of such series for principal of (and premium, if any) and
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities of such series for principal
(and premium, if any) and interest, respectively.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section 6.09.
SECTION 6.10 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorney's fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.10
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.06 or a suit by Holders of more than 10% in principal amount of the Securities
of any series then outstanding.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers vested in it by this Indenture and use the
same degree of care and skill in their
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exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligation shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. The Trustee, however, shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error in judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless, subject to the provisions of the TIA, it
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receives indemnity satisfactory to it against any loss, liability, expense or
fee except liabilities for its own negligent action, its own negligent failure
to act, or its own willful misconduct.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 Rights of Trustee.
(1) The Trustee may rely on and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an opinion of Counsel, or both, which shall conform to
Section 13.05. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(3) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(5) The Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by the Trustee hereunder in
good faith and reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities of any series pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities of any series and may otherwise deal with the Company or
its Affiliates with the same
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rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, is subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities of any series, it shall not be accountable for the
Company's use of the proceeds from the Securities of any series, and it shall
not be responsible for any statement of the Company in the Indenture or any
statement in the Securities of any series other than its certificate of
authentication or in any document used in the sale of the Securities of any
series other than any statement in writing provided by the Trustee expressly for
use in such document.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee with respect to the Securities of any series, the Trustee
shall mail to each Holder of Securities of such series notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a default
in payment of principal of, premium, if any, or interest on any Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Holders of Securities of such series. Notwithstanding anything to
the contrary expressed in this Indenture, the Trustee shall not be deemed to
have knowledge of any Event of Default hereunder unless and until it shall have
actual knowledge thereof, or shall have received written notice thereof from the
Company at its principal corporate trust office in Providence, Rhode Island. The
Trustee shall not be deemed to have actual knowledge of an Event of Default
hereunder, except in the case of an Event of Default under Sections 6.01(1) or
6.01(2), until a Trust Officer receives written notice thereof from the Company
or any Securityholder that such an Event of Default has occurred.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each July 15 beginning with July 15, 1998, the
Trustee, if required by the provisions of TIA ss. 313(a), shall mail to each
Securityholder a brief report dated as of such July 15 that complies with TIA
ss. 313(a). The Trustee also shall comply with TIA ss. 313(b) and ss. 313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities of any
series are listed. The Company agrees to notify the Trustee in writing whenever
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the Securities of any series become listed or delisted on or from any stock
exchange.
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses may
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any loss or liability incurred by it in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the Securities or the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity and the Company may elect by written notice to the
Trustee to assume the defense of any such claim at the Company's expense with
counsel reasonably satisfactory to the Trustee.
The Company need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by it through the Trustee's negligence,
bad faith or willful misconduct. The Company shall not be liable for any
settlement of any claim or action effected without the Company's consent.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign with respect to any series of Securities by so
notifying the Company. The Holders of a majority in principal amount of the
Securities of any series then outstanding may remove the Trustee with respect to
such series of Securities by so notifying the Trustee and may appoint a
successor Trustee with respect to such series of Securities with the Company's
written consent. The Company may remove the Trustee with respect to any series
of Securities (or, if clause (4) applies, with respect to all series) if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting with respect to any
series of Securities.
If the Trustee resigns or is removed with respect to any series of
Securities or if a vacancy exists in the office of Trustee with respect to any
series of Securities for any reason, the Company shall promptly appoint a
successor Trustee with respect to such series.
If a successor Trustee with respect to any series of Securities does not
take office within 45 days after the retiring Trustee with respect to such
series resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the Securities of such series then
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
with respect to any series of Securities to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall, upon payment of its
charges, transfer all property held by it as Trustee with respect to such series
to the successor Trustee, subject to the lien provided for in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective with
respect to such series, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture with respect to such
series. Notwithstanding the replacement of the Trustee with respect to any
series of Securities pursuant to this Section 7.08, the Company's obligations
under Section 7.07 shall continue for the benefit of the retiring Trustee with
respect to expenses and liabilities incurred by it and compensation earned by it
prior to such replacement or otherwise with respect to the Securities of such
series or the Indenture. A successor Trustee with respect to any series of
Securities shall mail notice of its succession to each Holder of Securities of
such series.
SECTION 7.09 Successor Trustee by Merger, etc.
It the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
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SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b), including the optional
provision permitted by the second sentence of TIA ss. 310(b)(9).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 Satisfaction, Discharge and Defeasance of the Securities.
The Company shall be deemed to have paid and discharged the entire
indebtedness on the Securities of any series after the date of the deposit
referred to in paragraph (a) below, the provisions of this Indenture shall no
longer be in effect in respect of the Securities of such series, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness; provided that the
following conditions shall have been satisfied:
(a) the Company has deposited or caused to be deposited with the
Trustee irrevocably as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of all
Securities of such series, with reference to this Section 8.01, (i) money
or (ii) U.S. Government Obligations or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge the entire indebtedness on all the
Securities of such series for principal, premium, if any, and interest, if
any, to the maturity date of such series of Securities as such principal,
premium, if any, or interest becomes due and payable in accordance with the
terms of this Indenture and the Securities;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in connection with all of the Securities of any
series, including all fees and expenses of the Trustee; and
(c) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of the entire indebtedness on the Securities and
the discharge of this Indenture and the termination of the Company's
obligations hereunder have been complied with.
"U.S. Government Obligations" means direct, non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
timely payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
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SECTION 8.02 Satisfaction and Discharge of Indenture.
In addition to its rights under Section 8.01, the Company may terminate all
of its obligations under this Indenture when:
(a) All of the Securities of such series theretofore authenticated and
delivered (other than (A) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.07
hereof and (B) Securities for whose payment money has theretofore been
deposited with the Trustee or the Paying Agent in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 2.05 and Section 8.06
hereof) have been delivered to the Trustee for cancellation; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in connection with the outstanding Securities,
including all fees and expenses of the Trustee.
SECTION 8.03 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
Section 8.01, the respective obligations of the Company specified in Sections
2.04, 2.05, 2.06, 2.07, 2.12, 4.01, 7.07, 8.05, 8.06, 8.07 and in Article 10
shall survive until the Securities are no longer outstanding, and thereafter, or
upon compliance with Section 8.02 the obligations of the Company in such
Sections 7.07 and 8.06 shall survive. Nothing contained in this Article Eight
shall abrogate any of the obligations or duties of the Trustee under this
Indenture.
SECTION 8.04 Application of Trust Money.
(a) Subject to the provisions of Section 8.06, all money and U.S. Government
Obligations deposited with the Trustee for the Securities of any series pursuant
to Section 8.01 or Section 8.02, and all money received by the Trustee in
respect of U.S. Government Obligations deposited with the Trustee for the
Securities of any series pursuant to Section 8.01 or Section 8.02 shall be held
in trust and reinvested by the Trustee in U.S. Government Obligations in
accordance with the Company's written instructions and applied by the Trustee in
accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Persons entitled
thereto, of the principal, premium, if any, and interest, if any, on the
Securities of such series; but such money need not be segregated from other
funds except to the extent required by law.
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(b) The Trustee shall deliver or pay to the Company from time to time upon
the Company's written request any U.S. Government Obligations, or money held by
it as provided in Section 8.01 or Section 8.02 which, in the written opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited for the
purpose for which such U.S. Government Obligations, or money were deposited or
received.
SECTION 8.05 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture with respect to the
Securities of any series, all monies then held by any Paying Agent for the
benefit of Securities of such series under the provisions of this Indenture
shall, upon written demand of the Company, be repaid to it or paid to the
Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 8.06 Return of Unclaimed Monies.
Any monies deposited with or paid to the Trustee or any Paying Agent for
the Securities of any series, or then held by the Company in trust, for the
payment of any principal, premium, if any, and interest, if any, on the
Securities of any series and not applied but remaining unclaimed by the Holders
of the Securities of such series for three years after the date upon which the
principal of and interest, if any, on the Securities of such series, as the case
may be, shall have become due and payable, shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by such Trustee or any Paying Agent on written
demand by the Company or (if then held by the Company) shall be discharged from
such trust; and the Holders of the Securities of such series entitled to receive
such payment shall thereafter look only to the Company for the payment thereof;
provided, however, that, before being required to make any such repayment, such
Trustee may, or shall at the written request of the Company, at the expense of
the Company, cause to be published once in an authorized newspaper in the same
city in which the place of payment with respect to the Securities of such series
shall be located and in an authorized newspaper in the City of New York, or mail
to each such Holder, a notice (in such form as may be deemed appropriate by such
Trustee) that said monies remain unclaimed and that, after a date named therein,
any unclaimed balance of said monies then remaining will be returned to the
Company.
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SECTION 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations with respect to the Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.04; provided, however, that
if the Company has made any payment of interest on or principal of any
Securities of any series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
The Company, when authorized by Board Resolution, and the Trustee at any
time and from time to time, may amend this Indenture or enter into one or more
indentures supplemental hereto, to be in a form satisfactory to the Trustee
without notice to or consent of any Securityholder for any of the following
purposes:
(1) to comply with Section 5.01; or
(2) to provide for uncertificated Securities in addition to or in place of
certificated Securities; or
(3) 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; or
(4) to add any Events of Default (and if such Events of Default are to be
applicable to less than all series of Securities, stating that such Events
of Default are expressly being included solely to be applicable to such
series); or
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(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 2.02; or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with any provision of
this Indenture, provided such other provisions shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 9.02 Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of each series at the time
outstanding affected by such supplemental indenture, the Company, when
authorized by Board Resolution, and the Trustee may amend this Indenture or from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 9.01, or of modifying in any manner the rights of the Holders of the
Securities of each such series. Subject to Section 9.04, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not,
without the consent of each Holder of Securities of any series affected:
(1) extend the fixed maturity of any Securities, or reduce the principal
amount thereof or premium, if any, or reduce the rate or extend the time of
payment of interest thereon, without the consent of the Holder of each
Security so affected;
(2) reduce the aforesaid percentage of Securities of each series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of all Securities then
outstanding affected thereby;
(3) waive (except, unless theretofore cured) a default in the payment of
the principal of (and premium, if any on), interest on or redemption
amounts with respect to any Security;
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(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in Sections 6.04, 6.06, 9.02 (this sentence) or 9.03;
or
(6) make any change that adversely affects any right to convert any
Security.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice, setting forth in general terms the substance of such
supplemental indenture, to all Holders of Securities of each series so affected
as the names and addresses of such Holders shall appear on the registry books.
Any failure of the Company so to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Subject to this Indenture, each amendment, supplement or waiver evidencing
other action shall become effective in accordance with its terms. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Security of any series is a continuing consent by the Holder even if
notation of the consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to its Security or portion
of a Security, if the Trustee receives the
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notice of revocation before the date the amendment, waiver or other action
becomes effective.
The Company shall fix a record date for the purpose of determining the
Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those persons who were Holders at such record date (or their duly
designated proxies) and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consent from Holders of the principal amount of Securities of any series
then outstanding required hereunder for such amendment, supplement or waiver to
be effective shall have also been given and not revoked within such 90-day
period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (1)
through (7) of Section 9.02. In that case the amendment, supplement or waiver
shall only bind the Holders of a Security or portion of a Security of the same
series.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security of
any series, the Trustee may request the Holder of the Security of such series to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determine, the Company in exchange for the
Security of such series shall issue and the Trustee shall authenticate a new
Security of such series that reflects the changed terms the cost and expense of
which will be borne by the Company.
SECTION 9.06 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of any applicable series theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 9.07 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article
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may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Trustees of the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Securities
outstanding of such series.
ARTICLE 10
CONVERSION OF SECURITIES
SECTION 10.01 Right of Conversion; Exercise.
Conversion of Securities of any series into shares of common stock of the
Company or Securities of another series as permitted by the terms of such
Securities shall be made initially at the conversion price specified in and in
accordance with the terms of such Securities and this Article. Notwithstanding
the foregoing, and in order to protect Meditrust Corporation's status as a REIT,
a Holder may not convert any Security, and any such Security shall not be
convertible by any Holder, if as a result of such conversion any person would
then be deemed to own, directly or indirectly, 9.9% or more of the outstanding
shares of common stock of Meditrust Corporation. For convenience, the conversion
of any portion of the principal of any Security or Securities into shares of
common stock or Securities of another series of the Company is hereinafter
sometimes referred to as the conversion of such Security or Securities.
SECTION 10.02. Issuance of Shares or other Securities on Conversion.
As promptly as practicable after the surrender, as herein provided, of any
Security or Securities of any series for conversion, the Company shall deliver
or cause to be delivered at its said office or agency, to or upon the written
order of the Holder of the Security or Securities so surrendered, certificates
representing the number of fully paid and nonassessable shares of common stock
or Securities of another series of the Company into which such Security or
Securities may be converted in accordance with the provisions of this Article
10. Such conversion shall be deemed to have been made as of the close of
business on the date that such Security or Securities shall have been
surrendered for conversion by receipt by the Trustee of the delivery thereof
with a written notice of conversion duly executed, so that the rights of the
Holder of such Security or Securities as a Securityholder shall cease at such
time and, subject to the following provisions of this paragraph, the person or
persons entitled to receive the shares of common stock or Securities of another
series upon conversion of such Security or Securities shall be treated for
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all purposes as having become the record holder or holders of such shares of
common stock or Securities of another series at such time and such conversion
shall be at the conversion price in effect at such time; provided, however, that
with respect to shares of common stock no such surrender on any date when the
stock transfer books of the Company shall be closed shall be effective to
constitute the person or persons entitled to receive the shares of common stock
upon such conversion as the record holder or holders of such shares of common
stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of common stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the conversion price in effect on the date that such Security or
Securities shall have been surrendered for conversion by receipt by the Trustee
of the delivery thereof, as if the stock transfer books of the Company had not
been closed. The Company shall give or cause to be given to the Trustee written
notice whenever the stock transfer books of the Company shall be closed.
Upon conversion of any Security of any series which is converted in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of such series of authorized denominations in principal
amount equal to the unconverted portion of such Security.
SECTION 10.03 No Adjustment for Interest or Dividends.
Except as otherwise provided in any supplemental indenture relating to the
Securities of such series, no payment or adjustment in respect of interest on
the Securities of any series or dividends on the shares of common stock shall be
made upon the conversion of any such Security or Securities; provided, however,
that if a Security of any series or any portion thereof shall be converted
subsequent to any regular record date and on or prior to the next succeeding
interest payment date, the interest falling due on such interest payment date
shall be payable on such interest payment date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the person in whose name such Security is registered at the close of
business on such regular record date and Securities surrendered for conversion
during the period from the close of business on any regular record date to the
opening of business on the corresponding interest payment date must be
accompanied by payment of an amount equal to the interest payable on such
interest payment date.
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SECTION 10.04 Adjustment of Conversion Price.
(1) With respect to any series of Securities that is convertible into
shares of common stock of the Company, in case the Company shall pay or make a
dividend or other distribution on any class of Capital Stock of the Company in
shares of common stock, the conversion price for any such series of Securities
in effect at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of common stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination.
(2) With respect to any series of Securities that is convertible into
shares of common stock of the Company, in case the Company shall issue rights or
warrants to all or substantially all holders of its shares of common stock
entitling them to subscribe for or purchase shares of common stock at a price
per share less than the current market price per share (determined as provided
in paragraph (6) of this Section) of the shares of common stock on the date
fixed for the determination of shareholders entitled to receive such rights or
warrants, the conversion price for any such series of Securities in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of common stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of common stock which the aggregate of the
subscription price of the total number of shares of common stock so offered for
subscription or purchase would purchase at such current market price and the
denominator shall be the number of shares of common stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of common stock so offered for subscription or purchase, such reduction
to become effective immediately after the opening of business on the day
following the date fixed for such determination. In the event that all of the
shares of common stock subject to such rights or warrants have not been issued
when such rights or warrants expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights or warrants been made on the basis
of the actual number of shares of common stock issued upon the exercise of such
rights or warrants. For the purposes of this paragraph (2), the number of shares
of common stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of
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fractions of shares of common stock. The Company will not issue any rights or
warrants in respect of shares of common stock held in the treasury of the
Company.
(3) With respect to any series of Securities that is convertible into
shares of common stock of the Company, in case the outstanding shares of common
stock shall be subdivided into a greater number of shares, the conversion price
for any such series of Securities in effect at the opening of business on the
day following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of common
stock shall each be combined into a smaller number of shares, the conversion
price for any series of Securities in effect at the opening of business on the
day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) With respect to any series of Securities that is convertible into
shares of common stock of the Company, in case the Company shall, by dividend or
otherwise, distribute to all or substantially all holders of shares of common
stock, evidences of indebtedness or assets (including securities, but excluding
(i) any rights or warrants referred to in paragraph (2) of this Section, (ii)
any dividend or distribution not prohibited by Section 4.06 hereof and (iii) any
dividend or distribution referred to in paragraph (1) of this Section), the
conversion price for any such series of Securities shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price in
effect immediately prior to the close of business on the day fixed for the
determination of shareholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (6) of this Section) of the shares of
common stock on the date fixed for such determination less the then fair market
value as determined by the Board of Trustees of the Company (whose determination
shall be conclusive and described in a resolution of the Board of Trustees of
the Company filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed allocable to one share of common stock and the
denominator shall be such current market price per share of the shares of common
stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution.
(5) With respect to any series of Securities that is convertible into
shares of common stock of the Company, in case the shares of common stock shall
be changed into the same or a different number of shares of any class or classes
of stock,
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whether by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or a stock dividend described in paragraph
(1) or paragraph (3) of this Section, or a consolidation, merger or sale of
assets described in Section 10.10), then and in each such event the Holders of
Securities of any series shall have the right thereafter to convert such
Securities into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
by holders of the number of shares of common stock into which such Securities
might have been converted immediately prior to such reorganization,
reclassification or change.
(6) For the purpose of any computation under paragraphs (2) and (4) of this
Section, the current market price per share of common stock on any date shall be
deemed to be the average of the Closing Prices for the 15 consecutive Business
Days selected by the Company commencing not more than 30 and not less than 20
Business Days before the date in question.
(7) No adjustment in the conversion price for the Securities of any series
shall be required unless such adjustment (plus any adjustments not previously
made by reason of this paragraph (7)) would require an increase or decrease of
at least 1% in such price; provided, however, that any adjustments which by
reason of this paragraph (7) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this paragraph (7) shall be made to the nearest cent.
(8) The Company may, but shall not be required to, make such reductions in
the conversion price for the Securities of any series, in addition to those
required by paragraph (1), (2), (3) and (4) of this Section, as the Board of
Trustees of the Company considers to be advisable in order to avoid or diminish
any income tax to any holders of shares of common stock resulting from any
dividend or distribution of stock or issuance of rights or warrants to purchase
or subscribe for stock or from any event treated as such for income tax purposes
or for any other reasons. The Company's Board of Trustees shall have the power
to resolve any ambiguity or correct any error in the adjustments made pursuant
to this Section 10.04 and its actions in so doing shall be final and conclusive.
SECTION 10.05 Notice of Adjustment of Conversion Price.
Whenever the conversion price for the Securities of any series is adjusted
as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 10.04 and shall prepare an Officers' Certificate
setting forth the adjusted conversion
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price and showing the facts upon which such adjustment is based and the
computation thereof, and such certificate shall forthwith be filed at each
office or agency maintained for the purpose of conversion of Securities
pursuant to Section 2.04 and with the Trustee;
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall as soon as practicable be
mailed by the Company to all Holders of Securities of such series at their
last addresses as they shall appear in the Registrar's books (the "Security
Register"); and
(c) if the conversion price is adjusted and the Company fails to file
an Officers' Certificate with the Trustee as provided by Section 10.05(a)
and the Trustee is acting as the Conversion Agent, the Trustee shall be
entitled to rely on the conversion price set forth in the Officers'
Certificate most recently received by the Trustee (or as set forth in this
Indenture if the conversion price shall not have been adjusted).
SECTION 10.06 Notice of Certain Corporate Action.
(1) In case:
(a) the Company shall authorize the granting to holders of its shares
of common stock of rights or warrants entitling them to subscribe for or
purchase any shares of Capital Stock of any class or of any other rights;
or
(b) of any reclassification of the shares of common stock of the
Company, or of any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities of any series pursuant to Section 2.04
and shall cause to be mailed to all Holders of Securities of such series that
are convertible into shares of common stock at their last addresses as they
shall appear in the Security Register, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable record date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend,
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distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the Holders of shares of common stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of shares of common stock of record
shall be entitled to exchange their shares of common stock for securities, cash
or other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Such notice shall also
state whether such transaction will result in any adjustment in the conversion
price applicable to the Securities of such series and, if so, shall state what
the adjusted conversion price will be and when it will become effective. Neither
the failure to give the notice required by this Section, nor any defect therein,
to any particular Holder shall affect the sufficiency of the notice or the
legality or validity of any such dividend, distribution, right, warrant,
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding-up, or the vote on any action authorizing such with
respect to the other holders.
(2) In case the Company or any Affiliate of the Company shall propose to
engage in a "Rule 13e-3 Transaction" as defined in the SEC's Rule 13e-3 under
the Securities Exchange Act of 1934, as amended, the Company shall, no later
than the date on which any information with respect to such Rule 13e-3
Transaction is first required to be given to the SEC or any other person
pursuant to such Rule 13e-3, cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, a copy of all
information required to be given to the SEC or such other person pursuant to
such Rule 13e-3. The information required to be given under this paragraph shall
be in addition to and not in lieu of any other information required to be given
by the Company pursuant to this Section 10.06 or any other provision of the
Securities or this Indenture.
SECTION 10.07 Taxes on Conversions.
The Company will pay any and all stamp or similar taxes that may be payable
in respect of the issuance or delivery of shares of common stock or Securities
of another series on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of shares of common stock or
Securities of another series in a name other than that of the Holder of the
Security or Securities to be converted, and no such issuance or delivery shall
be made unless and until the person requesting such issuance has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
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SECTION 10.08 Fractional Shares.
No fractional shares or scrip representing fractional shares shall be
issued upon any conversion of Securities. If any such conversion would otherwise
require the issuance of a fractional share an amount equal to such fraction
multiplied by the current market price per share of common stock (determined as
provided in paragraph (6) of Section 10.04) on the day of conversion shall be
paid to the Holder in cash by the Company.
SECTION 10.09 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee
to be cancelled by or at the direction of the Trustee, which shall dispose of
the same as provided in Section 2.10.
SECTION 10.10 Provisions in Case of Consolidation, Merger or Sale of Assets.
(1) In case of any consolidation of the Company with, or merger of the
Company into, any other corporation or trust, or in case of any merger of
another corporation or trust into the Company (other than a consolidation or
merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of common stock of the Company), or in case
of any sale or transfer of all or substantially all of the assets of the
Company, the corporation or trust formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security of any series then outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in Section
10.01 to convert such Security only into the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by a holder of the number of shares of common stock of the Company into which
such Security might have been converted immediately prior to such consolidation,
merger, sale or transfer. Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above provisions of this
Section shall similarly apply to successive consolidations, mergers, sales or
transfers.
(2) The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or securities or
property receivable by Holders upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, sale or conveyance or to
any adjustment to be made with respect thereto.
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SECTION 10.11 Disclaimer by Trustee of Responsibility for Certain Matters.
The Trustee shall not at any time be under any duty or responsibility to
any Holder of Securities of any series to determine whether any facts exist
which may require any adjustment of the conversion price for such series, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity, value, kind or amount of any shares of
common stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and it makes no representation
with respect thereto. Provided that the Conversion Agent has provided the
Company with any notice required hereunder, the Trustee shall not be responsible
for any failure of the Company to issue, transfer or deliver any stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or to comply with any of the covenants of the
Company contained in this Article.
SECTION 10.12 Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep available,
free from preemptive rights, out of its authorized shares of common stock,
solely for the purpose of issuance upon conversion of any Securities as herein
provided, such number of shares of common stock as shall then be issuable upon
the conversion of any such Securities. The Company covenants that all shares of
common stock which shall be so issuable shall be, when issued, duly and validly
issued and fully paid and non-assessable. For purposes of this Section 10.12,
the number of shares of common stock which shall be deliverable upon the
conversion of any such Securities shall be computed as if at the time of
computation all such Securities were held by a single holder.
ARTICLE 11
SUBORDINATION; SENIORITY
SECTION 11.01 Securities Subordinated to Senior Indebtedness.
(a) Securities of any series which by their terms are subordinated and
junior in right of payment of the principal of, premium, if any, and interest on
such securities (all of the foregoing, a "Payment or Distribution") to the prior
payment in full of any Senior Indebtedness ("Subordinated Securities") whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed, shall comply with the provisions
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of this Article 11, and each Holder of the Subordinated Securities of such
series by its acceptance thereof likewise agrees. A Payment or Distribution
shall include any asset of any kind or character, and may consist of cash,
securities or other property, by set-off or otherwise, and shall include,
without limitation, any purchase, redemption or other acquisition of the
Subordinated Securities of the series or the making of any deposit of funds or
securities pursuant to this Indenture (including, without limitation, any
deposit pursuant to Article 8 hereof).
(b) The Senior Indebtedness of the Company shall continue to be Senior
Indebtedness and entitled to the benefit of these subordination provisions
irrespective of any amendment, modification or waiver of any term of any
instrument relating to refinancing of the Senior Indebtedness.
(c) All the provisions of this Indenture and the Subordinated Securities of
any series shall be subject to the provisions of this Article 11 so far as they
may be applicable thereto, except that nothing in this Article 11 shall apply to
claims for, or payments to, the Trustee under or pursuant to Section 7.07.
(d) No right of any holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be affected or
impaired by any failure to act on the part of the Company, any Paying Agent, the
Holders of the Subordinated Securities of any series, the Trustee or the holders
of the Senior Indebtedness, or by any noncompliance by the Company, any Paying
Agent, the Holders of the Subordinated Securities of any series or the Trustee
with any of the terms, provisions and covenants of the Subordinated Securities
or this Indenture, regardless of any knowledge thereof that any such holder of
Senior Indebtedness may have or be otherwise charged with.
(e) In the event that the Subordinated Securities of any series are
declared due and payable before their expressed maturity because of the
occurrence of a default hereunder, (i) the Company will give prompt notice in
writing of such happening to the holders of Senior Indebtedness and (ii) all
Senior Indebtedness shall forthwith become immediately due and payable upon
demand, regardless of the expressed maturity thereof.
SECTION 11.02 Company Not to Make Payments with Respect to Subordinated
Securities in Certain Circumstances.
No Payment or Distribution shall be made by the Company on account of
principal of (or premium, if any) or interest on the Subordinated Securities of
any series, whether upon stated maturity, upon
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redemption or acceleration, or otherwise, or on account of the purchase or other
acquisition of Subordinated Securities of such series, whether upon stated
maturity, upon redemption or acceleration, or otherwise, if there shall have
occurred and be continuing a default with respect to any Senior Indebtedness
permitting the acceleration thereof or with respect to the payment of any Senior
Indebtedness and (a) such default is the subject of a judicial proceeding or (b)
notice of such default in writing or by telegram has been given to the Company
by any holder or holders of any Senior Indebtedness, unless and until the
Company shall have received written notice from such holder or holders that such
default or event of default shall have been cured or waived or shall have ceased
to exist.
Upon any acceleration of the principal of the Subordinated Securities of
any series or any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash, or payment thereof
provided for to the satisfaction of the holders thereof, before any Payment or
Distribution is made on account of the redemption price or principal of (and
premium, if any) or interest on the Subordination Securities of such series; and
(subject to the power of a court of competent jurisdiction to make other
equitable provision, which shall have been determined by such court to give
effect to the rights conferred in this Article upon the Senior Indebtedness and
the holders thereof with respect to the Subordinated Securities of such series
or the Holders thereof or the Trustee, by a lawful plan of reorganization or
readjustment under applicable law) upon any such dissolution or winding up or
liquidation or reorganization, any Payment or Distribution by the Company or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Subordinated Securities of
any series or the Trustee would be entitled except for the provisions of this
Article, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such Payment or Distribution
directly to the holders of Senior Indebtedness of the Company or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any Payment or Distribution is made to the Holders of the
Subordinated Securities of such series or to the Trustee, except that the
Trustee will have a lien for the payment of its fees and expenses.
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In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Company of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Subordinated Securities of any series before all Senior
Indebtedness is paid in full in cash, or provision is made for such payment to
the satisfaction of the holders thereof, and if such fact shall then have been
or thereafter be made known to a Trust Officer of the Trustee or, as the case
may be, such Holder, then and in such event such Payment or Distribution shall
be paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving effect to
any concurrent Payment or Distribution to or for the holders of such Senior
Indebtedness, and, until so delivered, the same shall be held in trust by any
Holder of a Security as the property of the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article Five shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section if such other Person shall, as a
part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Five. Nothing in this Section shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.07.
The holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Holders of the Subordinated Securities
of any series, without incurring responsibility to the Holders of the
Subordinated Securities of such series and without impairing or releasing the
obligations of the Holders of the Subordinated Securities of such series
hereunder to the holders of Senior Indebtedness: (i) change the manner, place or
terms of payment or change or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and/or
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
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SECTION 11.03 Subrogation of Subordinated Securities.
Subject to the payment in full in cash of all amounts then due (whether by
acceleration of the maturity thereof or otherwise) on account of all Senior
Indebtedness at the time outstanding, the Holders of the Subordinated Securities
of any series shall be subrogated to the rights of the holders of Senior
Indebtedness to receive Payments or Distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Senior Indebtedness shall
be paid in full; and, for the purposes of such subrogation, no Payments or
Distributions to the holders of Senior Indebtedness to which the Holders of the
Subordinated Securities of any series or the Trustee would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Subordinated Securities of any series or the Trustee, shall, as between the
Company, the Company's creditors other than holders of Senior Indebtedness, and
the Holders of the Subordinated Securities of such series, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Subordinated
Securities of any series, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Subordinated Securities of each series, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Subordinated Securities
of any series the principal of (and premium, if any) and interest on the
Subordinated Securities of such series as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Subordinated Securities series and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Subordinated Security of any series from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Subordinated Securities of any
series shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any dissolution, winding up, liquidation or
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reorganization proceedings are pending, or certificate of the receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the Subordinated
Securities of such series, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 11.04 Authorization by Holders of Subordinated Securities.
Each holder of a Subordinated Security of any series by its acceptance
thereof authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate, as between the Holder of the
Security and the holders of Senior Indebtedness, the subordination provided in
this Article and appoints the Trustee its attorney-in-fact for any and all such
purposes including, without limitation, to execute, verify, deliver and file any
proofs of claim which any holder of Senior Indebtedness may at any time require
in order to prove and realize upon any rights or claims pertaining to the
Subordinated Securities and to effectuate the full benefit of the subordination
contained herein. Upon failure of the Trustee so to do, any such holder of
Senior Indebtedness shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of the Holder to execute, verify, deliver and file any such
proofs of claim.
SECTION 11.05 Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to it that would prohibit the making of any payment of moneys to or by the
Trustee in respect of the Subordinated Securities of any series pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee in respect of the Subordinated Securities
of any series pursuant to the provisions of this Article, unless and until a
Trust Officer of the Trustee shall have received at its Corporate Trust Office
written notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee or agent therefor; and, prior to the receipt of
any such written notice, the Trustee shall be entitled in all respects to assume
that no such facts exist; provided, however, that if a Trust Officer of the
Trustee shall not have received at least three Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose (including, without
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limitation, the payment of the principal of (premium, if any) or interest on any
Subordinated Security of any series) with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have the full power and authority to receive
such moneys and to apply the same to the purpose for which they were received
and shall not be affected by any notice to the contrary that may be received by
it within three Business Days prior to such date.
The Trustee shall be entitled to rely conclusively on the delivery to it of
a written notice by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or agent
on behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 11.06 Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in Section 7.11 or elsewhere in this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holder if
it shall mistakenly pay over or distribute to Holders of the Subordinated
Securities of any series or the Company or any other Person money or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
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SECTION 11.07 No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
the Trustee or the Holder of any of the Subordinated Securities of any series or
by any act, or failure to act, in good faith, by any such holder of Senior
Indebtedness, or by any noncompliance by the Company, the Trustee or the Holder
of any of the Subordinated Securities of any series with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
SECTION 11.08 Article 11 Not To Prevent Events of Default.
The failure to make a payment on account of principal of (premium, if any)
or interest on the Subordinated Securities of any series by reason of any
provision in this Article 11 shall not be construed as preventing the occurrence
of an Event of Default with respect to such series under Section 6.01.
SECTION 11.09 Paying Agents other than the Trustee.
In any case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article 11 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article 11 in addition to or in place of the Trustee.
SECTION 11.10 Securities Senior to Subordinated Indebtedness.
The indebtedness represented by the Securities of any series will be senior
and prior in right of payment to all Subordinated Indebtedness, to the extent
and in the manner provided in such Subordinated Indebtedness.
ARTICLE 12
SINKING FUND
SECTION 12.01 Mandatory and Optional Sinking Fund Payments.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series, except as otherwise permitted or
required by any form of Security of a series issued pursuant to this Indenture.
The minimum amounts of any sinking fund payments provided for by the terms
of Securities of any series are herein referred to as "mandatory sinking fund
payments," and any payments in excess
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of those minimum amounts provided for by the terms of Securities of that series
are herein referred to as "optional sinking fund payments." If provided for by
the terms of the Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of that series.
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series, as provided for by the
terms of that series (1) apply as a credit Securities of that series which have
been redeemed either at the election of the Company pursuant to the terms of
that series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that no
Securities of such series have been previously so credited or (2) apply as a
credit Securities of that series which have been converted or exchanged into
shares of common stock or Securities of another series pursuant to the terms of
that series of Securities, provided that no series of Securities of such series
have been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments pursuant
to this Section, the principal amount of Securities of that series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities of that series for redemption,
except upon the request of the Company, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
SECTION 12.03 Redemption of Securities for Sinking Funds.
Not less than 60 days prior to each mandatory sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the mandatory sinking fund payment for that
series
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pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery or credit of Securities pursuant to Section 12.02 hereof,
and the optional amount, if any, to be added in cash to the mandatory sinking
fund payment, and will also deliver to the Trustee any Securities to be so
credited and not theretofore delivered. If such Officers' Certificate shall
specify an optional amount to be added in cash to the mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 hereof and cause notice of
the redemption thereof to be given in the name and at the expense of the Company
in the manner provided in Section 3.03 hereof.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provisions shall control.
SECTION 13.02 Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, or
first class mail, postage prepaid (except that any notice by the Trustee to the
Company of a default or an Event of Default under this Indenture shall be by
registered or certified mail, postage prepaid, return receipt requested), or by
a nationally-recognized overnight express courier service (which notices or
communications shall be deemed received the business day after the receipt
thereof by such service), addressed as follows:
if to the Company:
Meditrust Corporation or Meditrust Operating Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
if to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
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The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered, and five (5)
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
the address of such Securityholder as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice, as required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
If the Company mails any notice or communication to Securityholders, it
shall mail a copy to the Trustee and all Agents at the same time.
SECTION 13.03 Communications by Holders with Other Holders.
Securityholders of any series may communicate pursuant to TIA ss. 312(b)
with other Securityholders of such series with respect to their rights under
this Indenture or the Securities of such series. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth
in Section 13.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
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(2) an Opinion of Counsel (which shall include the statements set forth in
Section 13.05) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate and Opinion.
Each Certificate and Opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
covenant or condition has been complied with.
SECTION 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar, Paying Agent or Conversion Agent may make
reasonable rules for its functions.
SECTION 13.07 Record Date.
Whenever the Company or the Trustee solicits an act of Securityholders of
any series, the Company or the Trustee may fix in advance of the solicitation of
such act a date as the record date for determining Securityholders of such
series entitled to perform said act. The record date shall be not more than 15
days prior to the date fixed for the solicitation of said act.
SECTION 13.08 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banks or trust
companies in the city in which either the Trustee or the Company is located are
not required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
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SECTION 13.09 Governing Law.
The laws of The Commonwealth of Massachusetts shall govern this Indenture
and the Securities without regard to principles of conflicts of law.
SECTION 13.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.11 No Recourse against Others.
No shareholder, trustee or officer, as such, past, present or future, of
the Company or of any successor corporation or trust shall have any liability
for any obligation of the Company under the Securities 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 Security of any series by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 13.12 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 13.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.
SECTION 13.14 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.15 Severability.
In case any provision in this Indenture or in the Securities of any series
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.16 Trustee Dealings with the Company.
The Trustee, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
MEDITRUST CORPORATION
MEDITRUST OPERATING COMPANY
By:
---------------------------------
Its:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
---------------------------------
Authorized Officer
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