<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
August 8, 1995
MEDITRUST
(Exact name of registrant as specified in charter)
Massachusetts 0-14022 04-6532031
(State of (Commission (I.R.S. Employer
Incorporation) File No.) Identification No.)
197 First Avenue, Needham, Massachusetts 02194
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(617) 433-6000
<PAGE> 2
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1 Form of Distribution Agreement
4.1 Form of Indenture Supplement
4.2 Form of Fixed Rate Senior Medium-Term Note
(included in Exhibit 4.1)
4.3 Form of Floating Rate Senior Medium-Term Note
(included in Exhibit 4.1)
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MEDITRUST
August 8, 1995 /s/ Lisa P. McAlister
---------------------------------
Lisa P. McAlister
Vice President and Treasurer
-2-
<PAGE> 1
Exhibit 1
MEDITRUST
$200,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
August 10, 1995
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center,
North Tower,
250 Vesey Street,
New York, New York 10281.
NatWest Capital Markets Limited,
c/o NatWest Securities Corporation
175 Water Street,
New York, New York 10038.
Smith Barney Inc.,
390 Greenwich Street, 4th Floor,
New York, New York 10013.
Ladies and Gentlemen:
Meditrust, a Massachusetts business trust (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount of up to $200,000,000 and agrees with each of you
(individually, an "Agent", and collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
which may be oral, confirmed in writing (each, a "Terms Agreement"), which may
be substantially in the form of Annex I hereto, relating to such sale in
accordance with Section 2(b) hereof. This Distribution Agreement shall not be
construed to create either an obligation on the part of the Company to sell any
Securities or an obligation of any of the Agents to purchase Securities as
principal.
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The Securities will be issued under an indenture, dated as of July 26,
1995, between the Company and Fleet National Bank, as Trustee (the "Trustee"),
as supplemented by a supplemental indenture, dated August 10, 1995, between the
Company and the Trustee (together with the indenture, the "Indenture"). The
Securities shall have the maturity ranges, interest rates, if any, redemption
provisions and other terms set forth in the Prospectus referred to below as it
may be amended or supplemented from time to time. The Securities will be
issued, and the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two registration statements on Form S-3 (File Nos.
33-56663 and 33-59215) in respect of the Securities have been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statements and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to such Agent,
excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectus included in the
latest registration statement, have been declared effective by the
Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission (other than the prospectuses filed pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Act, each in
the form heretofore delivered to the Agents); and no stop order
suspending the effectiveness of any such registration statements has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statements or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Act, are hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statements, including all exhibits thereto
and the documents incorporated by reference in the prospectus
contained in the registration statements at the time such part of such
registration statement became effective but excluding Form T-1, each
as amended at the time such part of the registration statements became
effective, is hereinafter collectively called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated therein by reference; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities to be sold pursuant to this
Agreement, in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance
with Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
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<PAGE> 3
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (other than any change resulting from the conversion of
the Company's convertible debentures and issuances under the Company's
equity incentive plans), short-term debt or long-term debt (other than
any change resulting from the conversion of the Company's convertible
debentures and issuances under the Company's equity incentive plans)
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(e) The Company has been duly formed and is validly existing
as a Massachusetts business trust in good standing under the laws of
the jurisdiction of its formation, with power and authority (trust and
other) to own its properties and conduct its business as described in
the Prospectus, and each of the Company's subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its organization, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of beneficial interest
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(g) The Securities have been duly authorized, and, when
issued and delivered pursuant to this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Securities of any particular issuance of
Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by
the Company and its subsidiaries with all of the provisions of the
Securities, the Indenture, this Agreement and any Terms Agreement, and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or its subsidiaries is a party or
by which the Company or its subsidiaries is bound or to which any of
the property or assets of the Company or its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Declaration of Trust, as amended, or the Certificate of Incorporation
or the By-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required
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<PAGE> 4
for the solicitation of offers to purchase Securities, the issue and
sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or
the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal,
as the case may be, in each case in the manner contemplated hereby;
(i) Neither the Company nor any of its subsidiaries is in
violation of its Declaration of Trust or Certificate of Incorporation
or By-laws or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(j) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, which, if determined adversely
to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not, and after giving effect to each
offering and sale of the Securities will not be, an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(m) None of the Company or any of its subsidiaries or, to the
best knowledge of the Company, any of its other affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(n) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
(o) Coopers & Lybrand L.L.P., who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(p) The Company and its subsidiaries have good and marketable
title to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
set forth in the Prospectus; and
(q) The Company is organized in conformity with the
requirements for qualification as, and, as of the Commencement Date
(as defined in Section 3 hereof) and as of the date of each Time of
Delivery (as defined in Section 2 hereof), operates in a manner that
qualifies it as, a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code") and the rules and
regulations thereunder and will be so qualified after consummation of
the transactions contemplated by the Prospectus.
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2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent
of the Company, to use its reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of 9
months to 30 years except pursuant to this Agreement, any Terms
Agreement, or except pursuant to a private placement not constituting
a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may
solicit and accept offers to purchase, Securities directly on its own
behalf in transactions with persons other than broker- dealers, and,
in the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than as modified pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the Trustee
a copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities.
As soon as practicable, but in any event not later than one business
day in New York City, after receipt of notice from the Company, the
Agents will suspend solicitation of offers to purchase Securities from
the Company until such time as the Company has advised the Agents that
such solicitation may be resumed. During such period, the Company
shall not be required to comply with the provisions of Sections 4(h),
4(i), 4(j) and 4(k). Upon advising the Agents that such solicitation
may be resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
shall automatically terminate the Agents' obligations hereunder,
including without limitation its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities
hereunder as principal.
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The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
</TABLE>
(b) Each sale of Securities to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement (which
may be oral, confirmed in writing by such Agent) which will provide
for the sale of such Securities to, and the purchase thereof by, such
Agent; a Terms Agreement may also specify certain provisions relating
to the reoffering of such Securities by such Agent; the commitment of
any Agent to purchase Securities as principal, whether pursuant to any
Terms Agreement or otherwise, shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant thereto, the price to
be paid to the Company for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; and such Terms
Agreement shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4
hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related
thereto at the time of sale, which may be equal to, greater than or
less than the price at which such Securities are purchased by such
Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall
be as set forth in the Administrative Procedure, unless otherwise
agreed. For each such sale of Securities to an Agent as principal
that is not
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made pursuant to a Terms Agreement, the Company agrees to pay such
Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth
therein.
Each time and date of delivery of and payment for Securities to
be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) NatWest Capital Markets Limited represents and agrees
that (i) it will not offer or sell any Securities within the United
States, its territories or possessions or to persons who are citizens
or residents therein, except in compliance with all applicable laws,
rules and regulations of any government or self-regulatory
organization, including, without limitation, Rule 15a-6 under the
Securities Act or 1934; (ii) it has not offered or sold and will not
offer or sell prior to the date six months after their date of issue
any Notes, having an original maturity of one year or greater, to
persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995; (iii)
it has complied with and will comply with all applicable provisions of
the Financial Services Act 1986 with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom; and (iv) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document received by it in
connection with the issue of the Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements)(Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Sullivan & Cromwell, New York, New York, at 11:00
a.m., New York City time, on the date of this Agreement, which date and time of
such delivery may be postponed by agreement between the Agents and the Company
but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus (A) prior to the Commencement
Date which shall be disapproved by any Agent promptly after reasonable
notice thereof or (B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior to
the related Time of Delivery which shall be disapproved by any Agent
party to such Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof; (ii) to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such Pricing
Supplement pursuant to Rule 424(b)(3) under the Act not later than the
close of business of the Commission on the fifth business day after
the date on which such Pricing Supplement is first used; (iii) to make
no amendment or supplement to the Registration Statement or
Prospectus, other than any Pricing Supplement, at any time prior to
having afforded each Agent a reasonable opportunity to review and
comment thereon; (iv) to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
and during such same period to advise such Agent, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
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(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as such Agent
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request
from time to time; and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such
Agent and request such Agent, in its capacity as agent of the Company,
to suspend solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than
one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the Securities, the Company
shall promptly prepare and file with the Commission such an amendment
or supplement;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to such Agent (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business
and financial condition of the Company as such Agent may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement with such
Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature from 9 months to
30 years after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
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<PAGE> 9
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference into the
Prospectus, and each time the Company sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by Sullivan &
Cromwell, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an
opinion under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to such Agent a written opinion of
Nutter, McClennen & Fish, counsel for the Company, or other counsel
for the Company satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, to
the effect that such Agent may rely on the opinion of such counsel
referred to in Section 6(c) hereof which was last furnished to such
Agent to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu
of such opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section 6(c) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented and each time that a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, in either case to set forth financial
information included in or derived from the Company's consolidated
financial statements or accounting records, and each time the Company
sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter
under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(d) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available
as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(d) hereof
which was last furnished to such Agent;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of
such supplement, amendment, incorporation or Time of Delivery relating
to such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to
in Section 6(h) hereof which were last furnished to such Agent are
true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(i) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and
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<PAGE> 10
(l) To offer to any person who has agreed to purchase
Securities from the Company as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase and pay for
such Securities if, on the related settlement date fixed pursuant to
the Administrative Procedure, any condition set forth in Section 6(a),
6(e), 6(f) or 6(g) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities
shall be substituted, for purposes of this Section 4(l), for the
respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(e) and 6(g), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(e) and 6(g) on behalf of any such
person).
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to
such Agent; (ii) the fees, disbursements and expenses of counsel for the Agents
in connection with the establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms Agreement;
(iii) the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (v) any fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vii) the cost of preparing the Securities; (viii) the
fees and expenses of any Trustee and any agent of any Trustee and any transfer
or paying agent of the Company and the fees and disbursements of counsel for
any Trustee or such agent in connection with any Indenture and the Securities;
(ix) any advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising expenses have
been approved by the Company; and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7
and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of
such Solicitation Time or Time of Delivery, as the case may be, the condition
that prior to such Solicitation Time or Time of Delivery, as the case may be,
the Company shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have
furnished to such Agent (i) their opinion or opinions, dated the
Commencement Date, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to in Section
4(h) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such
applicable date, to the effect that such Agent may rely on the opinion
or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the
date of such letter authorizing reliance (except that the statements
in such last opinion or opinions
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<PAGE> 11
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case,
in lieu of such an opinion or opinions, an opinion or opinions of the
same tenor as the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Nutter, McClennen & Fish, counsel for the Company, or
other counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) The Company has been duly formed and is validly
existing as a Massachusetts business trust in good standing
under the laws of the Commonwealth of Massachusetts, with
power and authority (trust and other) to own its properties
and conduct its business as described in the Prospectus as
amended or supplemented, and each of the Company's
subsidiaries has been duly organized and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its organization and has all requisite power
and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iv) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company;
(v) The Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered by the
Company, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the
Indenture; and the Indenture conforms and the Securities will
conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable against
the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vii) The issue and sale of the Securities, the
compliance by the Company and its subsidiaries with all of the
provisions of the Securities, the Indenture, this Agreement
and any applicable Terms Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or its
subsidiaries is a party or by which the Company or its
subsidiaries is bound or to which any of the property or
assets of the Company or its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Declaration of Trust, as amended, or the Certificate of
Incorporation or the By-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or its subsidiaries
or any of their properties;
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<PAGE> 12
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation
of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the
Agents of offers to purchase Securities from the Company and
with purchases of Securities by an Agent as principal, as the
case may be, in each case in the manner contemplated hereby;
(ix) Neither the Company nor any of its
subsidiaries is in violation of its By-laws, Declaration of
Trust, Certificate of Incorporation or other organizational
documents;
(x) The statements set forth in the Prospectus
under the captions "Description of Debt Securities" and
"Description of the Notes" insofar as they purport to
constitute a summary of the terms of the Notes or the
Indenture, are accurate, complete and fair, and the statements
set forth in the Prospectus under the caption "United States
Taxation" and in the Company's Current Report on Form 8-K
dated March 4, 1992, as amended, incorporated by reference in
the Prospectus insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not required to be registered
under the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and they have no reason to believe
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case
of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading;
(xiii) The Registration Statement and the Prospectus
as amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 6(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment or supplement thereto made
by the Company prior to the date of such opinion (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the
date of such opinion, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to the date of such opinion (other
than the financial statements and related schedules therein,
as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required;
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<PAGE> 13
(xiv) Each of the Company and its subsidiaries has
been duly qualified as a foreign corporation or business trust
for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates); and
(xv) Commencing with the Company's taxable year
ending December 31, 1985, the Company has been constituted in
conformity with the requirements for qualification as a real
estate investment trust under the Code and the Company's
historic and proposed methods of operation have enabled and
will enable the Company to meet the requirements for
qualification and taxation as a real estate investment trust
under the Code.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock (other than any change resulting
from the conversion of the Company's convertible debt and issuances
under the Company's equity incentive plans), short-term debt or
long-term debt (other than any change resulting from the conversion of
the Company's convertible debt and issuances under the Company's
equity incentive plans) of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of such Agent so material and
adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the
Company or the purchase by such Agent of Securities from the Company
as principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed
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<PAGE> 14
with the solicitation of offers to purchase Securities or the purchase
of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus;
(h) The Company shall have furnished or caused to be
furnished to such Agent certificates of officers of the Company dated
the Commencement Date and each applicable date referred to in Section
4(k) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters
set forth in subsections (a) and (e) of this Section 6, and as to such
other matters as such Agent may reasonably request; and
(i) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is indexed
to such currency, currencies or composite currency, there shall not
have occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change
in the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or
countries issuing such currency, currencies or composite currency or
the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency,
currencies or composite currency.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several,
to which such Agent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse such Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly
for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by
such Agent expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the
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<PAGE> 15
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and each Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in
respect thereof. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information
supplied by the Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by per
capita allocation (even if all Agents were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering
price at which the Securities purchased by or through it were sold
exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition
15
<PAGE> 16
to any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each officer and trustee of the
Company and to each person, if any, who controls the Company within
the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on
its obligation to deliver Securities to a purchaser whose offer it has
accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent, or
the Company, or any officer or trustee or any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent
upon the giving of written notice of such suspension or termination to such
Agent or the Company, as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the fourth paragraph of Section 2(a), and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and if to Goldman, Sachs & Co. shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 357-8680,
Attention: Credit Department, Credit Control--Medium-Term Notes and if to
Merrill Lynch, Pierce, Fenner & Smith Incorporated shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
World Financial Center, North Tower, 10th Floor, New York, New York 10281-1310,
Facsimile Transmission No. (212) 449-2234, Attention: MTN Product Management,
and if to Smith Barney Incorporated or NatWest Capital Markets Limited shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to addresses, telex nos. and facsimile
transmission nos. of such other Agents, and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 197 First Avenue, Needham Heights, Massachusetts 02194,
Facsimile Transmission No. (617) 433-1290, Attention: David F. Benson,
President.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and trustees of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16
<PAGE> 17
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
16. THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED AUGUST
6, 1985, AS AMENDED (THE "DECLARATION"), A COPY OF WHICH IS DULY FILED IN THE
OFFICE OF THE SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES
THAT THE NAME "MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR
CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
17
<PAGE> 18
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
Meditrust
By: . . . . . . . . . . . . . . .
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
. . . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:
NatWest Capital Markets Limited
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:
Smith Barney Inc.
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:
18
<PAGE> 19
ANNEX I
MEDITRUST
[TITLE OF SECURITY]
TERMS AGREEMENT
. . . . . . . . . . , 19..
[Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center,
North Tower,
250 Vesey Street,
New York, New York 10281.]
[NatWest Capital Markets Limited,
175 Water Street,
New York, New York 10038.]
[Smith Barney Inc.,
390 Greenwich Street, 4th Floor,
New York, New York 10013.]
Ladies and Gentlemen:
Meditrust (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated August 10, 1995 (the
"Distribution Agreement"), between the Company on the one hand and Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, NatWest
Capital Markets Limited and Smith Barney Incorporated Inc. (the "Agents") on
the other, to issue and sell to [Goldman, Sachs & Co.] [Name(s) of other
Agent(s)] the securities specified in the Schedule hereto (the "Purchased
Securities"). Each of the provisions of the Distribution Agreement not
specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference
in its entirety, and shall be deemed to be part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto
an agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
I-1
<PAGE> 20
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Goldman, Sachs & Co.] [Name(s) of other Agent(s)] and
[Goldman, Sachs & Co. ] [Name(s) of other Agent(s)] agree[s] to purchase from
the Company the Purchased Securities, at the time and place, in the principal
amount and at the purchase price set forth in the Schedule hereto.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED AUGUST 6, 1985,
AS AMENDED (THE "DECLARATION"), A COPY OF WHICH IS DULY FILED IN THE OFFICE OF
THE SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE
NAME "MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
If the foregoing is in accordance with your understanding, please sign and
return to us ...... counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Meditrust
By: . . . . . . . . . . . . . . . .
Name:
Title:
Accepted:
[ . . . . . . . . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:]
[NatWest Capital Markets Limited
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:]
[Smith Barney Inc.
By: . . . . . . . . . . . . . . . . . . . . . .
Name:
Title:]
I-2
<PAGE> 21
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$....................]
[PRICE TO PUBLIC:]
Purchase Price by [GOLDMAN, SACHS & CO. ] [NAME(S) OF OTHER AGENT(S)]:
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM ............... TO ...............] [AND ACCRUED AMORTIZATION, IF
ANY, FROM ................. TO ................]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER
OF THE COMPANY, IN [[NEW YORK] CLEARING HOUSE] [IMMEDIATELY AVAILABLE] FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN [NEXT
DAY] [IMMEDIATELY AVAILABLE] FUNDS]
Indenture:
Indenture, dated as of July 26, 1995, between the Company and Fleet
National Bank, as Trustee, as supplemented by the supplemental
indenture, dated as of August 10, 1995, between the Company and the
Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
I-3
<PAGE> 22
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).
(2) The opinion of counsel to the Company referred to in Section 4(i).
(3) The accountants' letter referred to in Section 4(j).
(4) The officers' certificate referred to in Section 4(k).
Other Provisions (including Syndicate Provisions, if applicable):
I-4
<PAGE> 23
ANNEX II
MEDITRUST
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated August 10, 1995 (the "Distribution Agreement"),
between Meditrust (the "Company") and Goldman, Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, NatWest Capital Markets Limited and Smith
Barney Incorporated Inc. (together, the "Agents"), to which this Administrative
Procedure is attached as Annex II. Defined terms used herein and not defined
herein shall have the meanings given such terms in the Distribution Agreement,
the Prospectus as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be
issued in accordance with the Administrative Procedure set forth in Part II
hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representation from the Company and the Trustee to the Depositary, and a
Medium-Term Note Certificate Agreement between the Trustee and the Depositary
(the "Certificate Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement System
("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
Each Agent also may make offers to the Company to purchase Book-Entry
Securities
II-1
<PAGE> 24
as a Purchasing Agent. The Company will have the sole right to accept offers
to purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly, but
in no event later than the time set forth under "Settlement Procedure
Timetable" below, the following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
II-2
<PAGE> 25
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable
written means. The Trustee will assign a CUSIP number to the Global Security
from a list of CUSIP numbers previously delivered to the Trustee by the Company
representing such Book-Entry Security and then advise the Company and the
Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such
information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the
case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (or, in the case of Floating Rate
Securities which reset daily or weekly, the date five calendar
days immediately preceding the applicable Interest Payment
Date and, in the case of all other Book-Entry Securities, the
Regular Record Date, as defined in the Security) and, if
calculable at that time, the amount of interest payable on
such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and credit
such Book-Entry Security to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the Trustee's settlement account for
an amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to the Depositary that (a) the
Global Security representing such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such Global Security pursuant to
the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and credit
such Book-Entry Security to the participant accounts of the Participants with
respect to such Book-Entry Security and (ii) to debit the settlement accounts
of such Participants and credit the settlement account of such Agent for an
amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
II-3
<PAGE> 26
I. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at Fleet Bank, N.A., Hartford,
Connecticut, or such other account as the Company may have previously specified
to the Trustee, in funds available for immediate use in the amount transferred
to the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written confirmation
to such purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the names
and addresses of the participants for whom the Depositary has credited
Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and use its best efforts to have delivered to the Selling Agent or Purchasing
Agent, as the case may be, at least ten copies of such Pricing Supplement, not
later than 11:00 a.m., New York City time, on the Business Day following the
Trade Date (as defined below), or if the Company and the purchaser agree to
settlement on the Business Day following the date of acceptance of such offer,
not later than 9:30 a.m., New York City time, on such date. The Company will
arrange to have the Pricing Supplement filed with the Commission not later than
the close of business of the Commission on the fifth Business Day following the
date on which such Pricing Supplement is first used.
If the Selling Agent or Purchasing Agent is Merrill Lynch, Pierce, Fenner
& Smith Incorporated then such Pricing Supplement shall be delivered in
accordance with the instructions set forth in Attachment A to this
Administrative Procedure.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with
respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is the third Business Day after the Trade Date
pursuant to the "Settlement Procedure Timetable" set forth below, unless the
Company and the purchaser agree to settlement on another Business Day which
shall be no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the
Trade Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------- ----
<S> <C> <C>
A 5:00 p.m. on the Business Day following the Trade Date or 10:00 a.m. on the Business
Day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the Business Day immediately preceding the Settlement Date
C 2:00 p.m. on the Business Day immediately preceding the Settlement Date
</TABLE>
II-4
<PAGE> 27
<TABLE>
<S> <C> <C>
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the Business Day immediately
preceding the Settlement Date. Settlement Procedure "H" is subject to
extension in accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date. Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the Depositary
to debit such Book-Entry Security to the Trustee's participant account,
provided that the Trustee's participant account contains a principal amount of
the Global Security representing such Book-Entry Security that is at least
equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a Global
Security, the Trustee will mark such Global Security "canceled", make
appropriate entries in the Trustee's records and send such canceled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or Securities
and shall be canceled immediately after issuance and the other of which shall
represent the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in
turn, the Agent for such Book-Entry Security may enter deliver orders through
the Depositary's Participant Terminal System debiting such Book-Entry Security
to such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall
have occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its use
of funds during the period when the funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities
to have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance
of a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
II-5
<PAGE> 28
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
Each Agent also may make offers to the Company to purchase Certificated
Securities as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Certificated Securities and may reject any such offer
in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following
as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
II-6
<PAGE> 29
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and use its best efforts to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 11:00 a.m., New York City time, on the Business Day
following the Trade Date, or if the Company and the purchaser agree to
settlement on the date of acceptance of such offer, not later than 9:30 a.m.
York City time, on such date. The Company will arrange to have the Pricing
Supplement filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third Business Day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
II-7
<PAGE> 30
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information
to the Trustee by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given
by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery
by the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to the
Company in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent's discount.
If the Purchasing Agent is Merrill Lynch, Pierce, Fenner & Smith
Incorporated then such Certificated Securities shall be delivered in accordance
with the instructions set forth under the caption "Admin Procedures - Delivery
of Certificated Notes" in Attachment A to this Administrative Procedure.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of
the Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-8
<PAGE> 31
Attachment A
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
PRICING SUPPLEMENT INSTRUCTIONS
The Company shall use its best efforts to have delivered a
completed Pricing Supplement, via next day mail or telecopy to
arrive no later than 11 a.m. on the Business Day following the
trade date, to the Presenting Agent at the following locations:
Merrill Lynch & Co.:
FOR OVERNIGHT, EXPRESS OR SPECIAL DELIVERY PACKAGES ONLY:
Tritech Services
40 Colonial Drive
Piscataway, NJ 08854
Attn.: Prospectus Operations/Susannah Putnam
Tel: 908-885-2769
FOR ALL OTHER TYPES OF DELIVERIES:
Tritech Services
#4 Corporate Place
Corporate Park 287
Piscataway, NJ 08854
Attn: Prospectus Operations/Nachman Kinnerling
Tel: 908-885-2769
Telecopy: (908) 885-2774/2775/2776
ALSO FOR RECORD KEEPING PURPOSES, PLEASE SEND A COPY TO:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incororated
World Financial Center, North Tower
10th Floor
New York, NY 10281-1310
Attn: MTN Product Management
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
Admin Procedures - Delivery of Certificated Notes
Merrill Lynch Money Markets Clearance
55 Water Street
Concourse Level
N.S.C.C. Window
New York, NY 10041
Attn: Al Mitchell
Telephone: (212) 558-2405
Telecopy: (212) 558-2457
II-9
<PAGE> 32
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[SEPARATELY] furnished to the Agents [AND ARE ATTACHED HERETO];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [HAVE BEEN
SEPARATELY FURNISHED TO THE AGENTS] [ARE ATTACHED HERETO]; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
III-1
<PAGE> 33
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in
the consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Agents, or any increases
in any items specified by the Agents, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Agents, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Agents which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Agents or in documents incorporated by reference in the Prospectus
specified by the Agents, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
III-2
<PAGE> 34
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-3
<PAGE> 1
Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
Dated as of August 10, 1995
to
INDENTURE
Dated as of July 26, 1995
between
MEDITRUST
And
FLEET NATIONAL BANK
as Trustee
Medium-Term Notes Due from 9 Months
to 30 Years from Date of Issue
<PAGE> 2
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of August 10, 1995
between Meditrust, a Massachusetts business trust (the "Company"), and Fleet
National Bank, a national banking association organized under the laws of the
United States (the "Trustee"), to the Indenture dated as of July 26, 1995,
between the Company and the Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture
which provides for the issuance by the Company of one or more series of
securities thereunder; and
WHEREAS, Section 9.01 of the Indenture provides, among other
things, that the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, without the consent of any Holders,
may enter into an indenture supplemental to the Indenture (a) 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 (b) to establish the form or terms of
Securities of any series as permitted by Sections 2.01 and 2.02; and
WHEREAS, the Company wishes to issue an additional series of
securities under the Indenture, designated its Medium-Term Notes Due from 9
Months to 30 Years from the Date of Issue (the "Notes"); and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Third Supplemental Indenture
for the purpose of amending the Indenture in certain respects with respect to
the Notes; and
WHEREAS, the amendments contained in this Third Supplemental
Indenture shall apply only to the Notes and the covenants of the Company
contained in this Third Supplemental Indenture are solely for the benefit of
the holders of the Notes; and
WHEREAS, all acts necessary to constitute this Third
Supplemental Indenture as a valid, binding and legal obligation of the Company
have been done and performed;
NOW, THEREFORE, witnesseth that, in consideration of the
premises and of the covenants herein, it is hereby agreed as follows:
-2-
<PAGE> 3
ARTICLE ONE
The Terms and Form of the Notes
(a) Terms of the Notes.
(i) The Notes shall be limited to the aggregate principal
amount of $200,000,000 (or if the Securities of this series are to be Original
Issue Discount Securities, such principal amount as shall result in an
aggregate initial offering price of Securities equivalent to not more than
$200,000,000) and shall be designated "Medium-Term Notes Due from 9 Months to
30 Years from Date of Issue".
(ii) The Notes shall be issued only in denominations of
$1,000 principal amount and integral multiples thereof; shall be dated the date
of their authentication; shall mature as specified on the face of each Note;
shall bear interest at either (a) a fixed rate of interest ("Fixed Rate
Notes"), or (b) a rate determined by reference to the specified Base Rate or
two or more specified Base Rates, which may in either case be adjusted by a
Spread and/or Spread Multiplier (as defined herein) ("Floating Rate Notes") as
specified on the face of each Note until maturity payable to the persons in
whose name the Notes shall be registered as of each record date as specified on
the face of each Note next preceding such interest payment date; shall be
entitled to the benefit of the covenants of the Company set forth in Article
II(a) and (b) hereof in addition to those set forth in the Indenture; and if
specified on the face of each Note, shall be redeemable at the option of the
Company as provided in the first four paragraphs of Article II(c) hereof. The
amount payable upon any acceleration of the Notes shall be as provided in the
fifth paragraph of Article II(c) hereof.
(b) Form of the Notes.
(i) The text of each Fixed Rate Note shall be
substantially in the following form:
-3-
<PAGE> 4
[Face of Security]
Registered $
No. - CUSIP No.
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the Depositary,
this Security is a global Security ("Global Security") and the following legend
is applicable: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER NAME, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
MEDITRUST
Medium-Term Note
(Fixed Rate)
INTEREST PAYMENT DATES: PRINCIPAL AMOUNT:
REGULAR RECORD DATES: ORIGINAL ISSUE DATE:
INTEREST RATE: MATURITY DATE:
REDEEMABLE AT OPTION OF: REDEMPTION PRICE(S):
REDEMPTION DATE(S):
OTHER TERMS: DEFAULT RATE:
(only applicable if
Security issued at
original issue discount)
IF THIS SECURITY IS NOT PUBLICLY OFFERED (WITHIN MEANING OF 1.1275(h) OF THE
INTERNAL REVENUE CODE), THEN THE FOLLOWING TERMS APPLY:
This Security is issued with Original Issue Discount (OID) and:
ISSUE PRICE:
ISSUE DATE:
AMOUNT OF OID:
YIELD TO MATURITY:
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<PAGE> 5
If the registered owner of this Security is the Depositary or a nominee
of the Depositary, this Security is a Global Security and the following legends
are applicable except as specified on the reverse hereof:
THIS SECURITY IS A GLOBAL SECURITY, WITHOUT COUPONS, EXCHANGEABLE FOR
ONE OR MORE DEFINITIVE SECURITIES OF THIS SERIES, WITHOUT COUPONS, AT THE
PRINCIPAL OFFICE OR AGENCY OF THE REGISTRAR IN PROVIDENCE, RHODE ISLAND OR THE
CITY OF NEW YORK ONLY UNDER THE CIRCUMSTANCES DESCRIBED HEREIN. THE RIGHTS
ATTACHING TO THIS GLOBAL SECURITY AND THE CONDITIONS AND PROCEDURES GOVERNING
ITS EXCHANGE FOR DEFINITIVE SECURITIES OF THIS SERIES ARE AS SPECIFIED HEREIN
AND IN THE INDENTURE. THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. IN
ADDITION, THE DEPOSITARY MAY NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY
BENEFICIAL INTEREST IN THIS GLOBAL SECURITY UNLESS SUCH BENEFICIAL INTEREST IS
IN AN AMOUNT EQUAL TO AN AUTHORIZED DENOMINATION FOR SECURITIES OF THIS SERIES,
AND THE DEPOSITARY, BY ACCEPTING THIS GLOBAL SECURITY, AGREES TO BE BOUND BY
THE PROVISIONS HEREOF.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST OR PRINCIPAL HEREON EXCEPT
PURSUANT TO THE PROVISIONS HEREOF.
This Security is one of a duly authorized issue of securities (herein
called the "Securities") of Meditrust, a Massachusetts business trust
(hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), limited to an
aggregate principal amount not to exceed $200,000,000 (or if the Securities of
this series are to be Original Issue Discount Securities, such principal amount
as shall result in an aggregate initial offering price of Securities equivalent
to not more than $200,000,000), issued and to be issued under an Indenture,
dated as of July 26, 1995 between the Company and Fleet National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture (as hereinafter defined)), to which Indenture and all
applicable indentures supplemental thereto (the Indenture as supplemented being
herein called the "Indenture") reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security has been issued in the Principal
Amount specified on the face hereof, with the Interest Payment Dates, Original
Issue Date, and Maturity Date specified on the face hereof and bearing interest
on said Principal Amount at the Interest Rate specified on the face hereof.
The Securities of this series may be issued from time to time with varying
maturities, interest rates and other terms.
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<PAGE> 6
The Company, for value received, hereby promises to pay to
______________________________, or registered assigns, the Principal Amount
hereof on the Maturity Date specified on the face hereof, and to pay interest
thereon, from the Original Issue Date specified on the face hereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, or, if the date of this Security is an Interest Payment Date to
which interest has been paid or duly provided for, then from the date hereof,
semi-annually in arrears on each Interest Payment Date commencing on the first
such Interest Payment Date next succeeding the Original Issue Date of this
Security and at Maturity unless the Original Issue Date of this Security is
between a Regular Record Date and an Interest Payment Date, in which case the
first payment of interest hereon shall be made on the second Interest Payment
Date following such Regular Record Date, at the Interest Rate per annum
specified on the face hereof, until the principal hereof is paid or duly made
available for payment. Interest on this Security shall be computed on the
basis of a 360-day year of twelve 30- day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security
(or one or more predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the date 14
calendar days (whether or not a Business Day) prior to each Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
be paid to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest (a "Special
Record Date"), notice whereof shall be given to the Holder of this Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange. Notwithstanding the
foregoing, interest payable on this Security at Maturity will be payable to the
person to whom principal is payable unless the Maturity Date is an Interest
Payment Date.
If this Security is a Global Security (as specified on the face
hereof), this Security is exchangeable in whole for definitive Securities of
this series of like tenor and of an equal aggregate principal amount in
accordance with the Indenture. Any definitive Securities of this series issued
in exchange for this Global Security shall be registered in the name or names
of such Person or Persons as the Holder hereof shall instruct the Registrar.
Except as provided above, owners of beneficial interests in this Global
Security will not be entitled to receive physical delivery of Securities in
definitive form and
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<PAGE> 7
will not be considered the Holders thereof for any purpose under the Indenture.
Any exchange of a Global Security for one or more definitive Securities
of this series will be made at the office or agency of the Registrar in
Providence, Rhode Island or The City of New York.
If this Security is a Global Security, except as provided in the next
paragraph, no beneficial owner of any portion of this Global Security shall be
entitled to receive payment of accrued interest hereon until this Global
Security has been exchanged for one or more definitive Securities of this
series, as provided herein and in the Indenture.
If this Security is a Global Security, if a definitive Security or
Securities of this series are issued in exchange for this Global Security after
the close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or
agency on the related Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of defaulted interest, interest or defaulted
interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such definitive
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Holder hereof, and the Holder
hereof will undertake in such circumstances to credit such interest to the
account or accounts of the Persons who were the beneficial owners of any
portion of this Global Security on such Regular Record Date or Special Record
Date, as the case may be.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Trustee maintained
for that purpose in Providence, Rhode Island, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the addresses of the
Persons entitled thereto as such addresses shall appear in the Security
register or by transfer to an account maintained by the payee with a bank in
The City of New York (so long as the applicable Paying Agent has received
proper and timely (as determined by the Paying Agent) transfer instructions in
writing).
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE> 8
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture or its successors thereunder, by
the manual signature of one of its authorized officers, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: MEDITRUST
---------------------------
By:
--------------------------------
[Seal] President
Attest:
------------------------
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By:
------------------------------
Authorized Officer
[SEAL]
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<PAGE> 9
[FORM OF REVERSE]
SPECIAL PROVISIONS
The portion of principal amount of OID Securities payable upon
declaration of acceleration of maturity shall be equal to the adjusted issue
price for an initial holder of this Security as of the first day of the
accrual period in which the acceleration date occurs, as determined under
Treasury Regulation Section 1.1275-1(b) (or successor regulation) under the
United States Internal Revenue Code of 1986, as amended (the "Code"), increased
by the daily portion of the original issue discount for each day in such
accrual period ending on the date of acceleration, as determined under Treasury
Regulation Section 1.1272-1(b) (or successor regulation) under the Code, and
decreased by (i) the amount of any payment (previously reflected in the
calculation of adjusted issue price) made on this Security other than
qualified stated interest, as determined under Treasury Regulation Section
1.1273-1(c) (or successor regulation) under the Code, made during the accrual
period in which the acceleration date occurs and before the acceleration date,
and (ii) the amount of any accrued but unpaid interest or premium on this
Security which was included in calculating the adjusted issue price or daily
portions above.
If this Security is issued with an Original Issue Discount, in the case
of a default in payment of principal upon acceleration, redemption or at
maturity hereof, in lieu of any interest otherwise payable, the overdue
principal of this Security shall bear interest at a rate of interest per annum
equal to the Default Rate specified on the face hereof (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such acceleration, redemption or maturity, as the case may be, to
the date payment has been made or duly provided for or such default has been
waived in accordance with the terms of the Indenture.
ADDITIONAL PROVISIONS
1. REGISTRAR AND AGENTS. Initially, Fleet National Bank will act
as Registrar, Paying Agent, and agent for service of notices and demands. The
Company may change any Registrar, co-registrar, Paying Agent, and agent for
service of notices and demands without notice. The Company or any of its
Subsidiaries may act as Paying Agent. The address of Fleet National Bank is
111 Westminster Street, R1M0199, Providence, Rhode Island 02903-2305.
2. INDENTURE, LIMITATIONS. The Company issued the Securities as a
series of its securities under an Indenture dated as of July 26, 1995 as
supplemented by a Third Supplemental Indenture dated as of August 10, 1995 (the
"Indenture") between the Company and Fleet National Bank, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the
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<PAGE> 10
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of the Indenture. The
Securities are subject to all such terms, and the Holders of the Securities are
referred to the Indenture and said Act for a statement of such terms.
The Securities are general unsecured obligations of the Company
limited to $200,000,000 principal amount (or if the Securities of this series
are to be Original Issue Discount Securities, such principal amount as shall
result in an aggregate initial offering price of Securities equivalent to not
more than $200,000,000). The Indenture imposes certain limitations on the
ability of the Company to, among other things, incur certain liens and certain
additional indebtedness, make payments in respect of its shares of beneficial
interest, merge or consolidate with any other Person and sell, lease, transfer
or dispose of its properties or assets.
3. OPTIONAL REDEMPTION BY THE COMPANY; PAYMENT UPON ACCELERATION.
If so specified on the face of this Security, the Securities may be redeemed at
any time at the option of the Company, in whole or in part, at a redemption
price equal to the sum of (i) the principal amount of the Securities being
redeemed plus accrued interest thereon to the redemption date and (ii) the
Make- Whole Amount, if any, with respect to such Securities (the "Redemption
Price"). The Make-Whole Amount shall be determined by the Trustee and such
determination shall be binding and conclusive, absent manifest error.
From and after notice has been given as provided in the Indenture, if
funds for the redemption of any Securities called for redemption shall have
been made available on such redemption date, such Securities will cease to bear
interest on the date fixed for such redemption specified in such notice and the
only right of the Holders of the Securities will be to receive payment of the
Redemption Price.
Notice of any optional redemption of any Securities will be given to
Holders at their addresses, as shown in the Security register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Securities held by such Holder to be redeemed.
The Company will notify the Trustee at least 60 days prior to the
redemption date (or such shorter period as satisfactory to the Trustee) of the
aggregate principal amount of Securities to be redeemed and the redemption
date. If less than all the Securities are to be redeemed at the option of the
Company, the Trustee shall select, pro rata or by lot, Securities to be
redeemed in whole or in part. Securities may be redeemed in part
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<PAGE> 11
in the minimum authorized denomination for Securities or in any integral
multiple thereof.
Upon any acceleration of the Securities, the Company shall pay in
respect thereof an amount equal to the sum of (i) the outstanding principal
amount of the Securities so accelerated plus accrued interest to the date of
acceleration and (ii) the Make-Whole Amount, if any, with respect to such
Securities.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of any interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had not been made, determined by
discounting, on a semiannual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable
if such redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Security being redeemed or paid;
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding in each of such relevant periods
to the nearest month. For the purposes of calculating the Reinvestment Rate,
the most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used; and
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any
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<PAGE> 12
determination under the Indenture, then such other reasonably comparable index
which shall be designated by the Company.
4. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. A Holder may register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not (i) 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 and ending at the close of business on the day of selection,
(ii) 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 redeemed in part, or (iii) 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 and ending at the close of business on the day interest is to be
paid on Securities of such series.
5. PERSONS DEEMED OWNERS. The registered Holder of a Security may
be treated as the owner of it for all purposes.
6. UNCLAIMED MONEY. If money for the payment of principal or
interest on any Securities remains unclaimed for three years, the Trustee and
the Paying Agent will pay the money back to the Company at its request, unless
otherwise required by law. Thereafter, Holders may look only to the Company
for payment.
7. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Indenture will
be discharged and cancelled except for certain sections thereof upon payment of
all the Securities, or upon the irrevocable deposit with the Trustee of funds
or U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment date or Redemption Date.
8. SUPPLEMENTAL INDENTURE. Subject to certain exceptions, the
Indenture may be amended or supplemented with respect to the Securities with
the consent of the Holders of at least a majority in principal amount of the
Securities then outstanding and any existing default or compliance with any
provision may be waived with the consent of the Holders of the majority in
principal amount of the Securities then outstanding. Without the consent of or
notice to any Holder, the Company may supplement the Indenture, to, among other
things, provide for uncertificated Securities, cure any ambiguity, defect or
inconsistency, or make
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<PAGE> 13
any other change that does not adversely affect the interest rights of any
Holder.
9. SUCCESSORS. Upon satisfaction of the conditions provided in
the Indenture, if a successor to the Company assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
10. DEFAULTS AND REMEDIES. If an Event of Default with respect to
the Securities, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of a majority in principal amount of Securities may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it, subject to the provisions
of the TIA, before it enforces the Indenture or the Securities. Subject to
certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power with respect to the Securities. The Trustee may withhold from Holders
of Securities notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee
as to the absence of any Default or Event of Default.
11. TRUSTEE DEALINGS WITH THE COMPANY. Fleet National Bank, the
Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates as if it
were not Trustee.
12. NO RECOURSE AGAINST OTHERS. No shareholder, trustee or
officer, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the 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
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.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6, 1985,
AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE SECRETARY OF
STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME "MEDITRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS "TRUSTEES," BUT
NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO
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<PAGE> 14
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
13. AUTHENTICATION. This Security shall not be valid until the
Trustee signs the certificate of authentication on the reverse side of this
Security.
14. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and any supplemental indentures thereto. It
also will furnish the text of this Security in larger type. Requests may be
made to: MEDITRUST, 197 First Avenue, Needham Heights, Massachusetts 02194,
Attention: Lisa P. McAlister, Vice President and Treasurer.
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<PAGE> 15
ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
................................................................................
................................................................................
................................................................................
................................................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint....................................................agent
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:...........................................................................
Your signature:.................................................................
(Sign exactly as your name appears on the reverse
side of this Security)
Signature Guaranteed By:........................................................
Note: Signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or
trust company.
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<PAGE> 16
(ii) The text of each Floating Rate Note shall be
substantially in the following form:
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<PAGE> 17
[Face of Security]
Registered $
No. - CUSIP No.
If the registered owner of this Security (as indicated below)
is The Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Security is a global Security ("Global Security") and the
following legend is applicable:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER NAME, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
MEDITRUST
Medium-Term Note
(Floating Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: MATURITY DATE:
INDEX MATURITY: SPREAD (plus or minus):
BASE RATE: SPREAD MULTIPLIER:
/ / Commercial Paper Rate
/ / LIBOR
/ / Treasury Rate
/ / CD Rate
/ / CMT Rate
/ / Federal Funds Rate
/ / Prime Rate
/ / Other:
MAXIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
MINIMUM INTEREST RATE: INTEREST RATE RESET
PERIOD:
INTEREST RESET DATE: INTEREST DETERMINATION
DATE:
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<PAGE> 18
INTEREST PAYMENT DATES: CALCULATION DATES:
REGULAR RECORD DATES: CALCULATION AGENT:
REDEEMABLE AT OPTION OF: REDEMPTION PRICE(S):
REDEMPTION DATE(S): OTHER TERMS:
IF THIS SECURITY IS NOT PUBLICLY OFFERED (WITHIN MEANING OF 1.1275(h) OF THE
INTERNAL REVENUE CODE), THEN THE FOLLOWING TERMS APPLY:
This Security is issued with Original Issue Discount (OID) and:
ISSUE PRICE: ISSUE DATE:
AMOUNT OF OID: YIELD TO MATURITY:
The portion of principal amount of OID Securities payable upon
declaration of acceleration of maturity shall be equal to the adjusted issue
price for an initial holder of this Security as of the first day of the accrual
period in which the acceleration date occurs, as determined under Treasury
Regulation Section 1.1275-1(b) (or successor regulation) under the United
States Internal Revenue Code of 1986, as amended (the "Code"), increased by the
daily portion of the original issue discount for each day in such accrual
period ending on the date of acceleration, as determined under Treasury
Regulation Section 1.1272-1(b) (or successor regulation) under the Code, and
decreased by (i) the amount of any payment (previously reflected in the
calculation of adjusted issue price) made on this Security other than qualified
stated interest, as determined under Treasury Regulation Section 1.1273-1(c)
(or successor regulation) under the Code, made during the accrual period in
which the acceleration date occurs and before the acceleration date, and (ii)
the amount of any accrued but unpaid interest or premium on this Security which
was included in calculating the adjusted issue price or daily portions above.
If the registered owner of this Security is the Depositary or a
nominee of the Depositary, this Security is a Global Security and the following
legends are applicable except as specified on the reverse hereof:
THIS SECURITY IS A GLOBAL SECURITY, WITHOUT COUPONS, EXCHANGEABLE FOR
ONE OR MORE DEFINITIVE SECURITIES OF THIS SERIES, WITHOUT COUPONS, AT THE
PRINCIPAL OFFICE OR AGENCY OF THE REGISTRAR IN PROVIDENCE, RHODE ISLAND OR THE
CITY OF NEW YORK ONLY UNDER THE CIRCUMSTANCES DESCRIBED HEREIN. THE
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<PAGE> 19
RIGHTS ATTACHING TO THIS GLOBAL SECURITY AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES OF THIS SERIES ARE AS
SPECIFIED HEREIN AND IN THE INDENTURE. THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY. IN ADDITION, THE DEPOSITARY MAY NOT SELL, ASSIGN, TRANSFER OR
OTHERWISE CONVEY ANY BENEFICIAL INTEREST IN THIS GLOBAL SECURITY UNLESS SUCH
BENEFICIAL INTEREST IS IN AN AMOUNT EQUAL TO AN AUTHORIZED DENOMINATION FOR
SECURITIES OF SUCH SERIES, AND THE DEPOSITARY, BY ACCEPTING THIS GLOBAL
SECURITY, AGREES TO BE BOUND BY THE PROVISIONS HEREOF.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE
PROVISIONS HEREOF.
This Security is one of a duly authorized issue of securities (herein
called the "Securities") of Meditrust, a Massachusetts business trust
(hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), limited to an
aggregate principal amount not to exceed $200,000,000 (or if the Securities of
this series are to be Original Issue Discount Securities, such principal amount
as shall result in an aggregate initial offering price of Securities equivalent
to not more than $200,000,000), issued and to be issued under an Indenture,
dated as of July 26, 1995 between the Company and Fleet National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture (as hereinafter defined)), to which Indenture and all
applicable indentures supplemental thereto (the Indenture as supplemented being
herein called the "Indenture") reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Company, for value received, hereby promises to pay to
_________________________________________, or registered assigns, the Principal
Amount hereof on the Maturity Date specified on the face hereof and to pay
interest thereon, from the Original Issue Date specified on the face hereof or
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, or, if the date of this Security is an Interest
Payment Date to which interest has been paid or duly provided for, then from
the date hereof, provided, however, that interest on a Security with daily or
weekly Interest Reset Dates shall be paid from the day following the most
recent Regular Record
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<PAGE> 20
Date, at a rate per annum equal to the Initial Interest Rate specified on the
face hereof, if any, until the first Interest Reset Date specified on the face
hereof following the Original Issue Date specified on the face hereof and
thereafter in accordance with the provisions below, until the principal hereof
is paid or duly made available for payment. Interest will be payable on each
Interest Payment Date, as specified on the face hereof, and at Maturity,
commencing with the first Interest Payment Date after the Original Issue Date
of this Security, unless the Original Issue Date of this Security is between a
Regular Record Date and an Interest Payment Date, in which case, the first
payment of interest hereon shall be made on the second Interest Payment Date
following such Regular Record Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or
more predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the date 14 calendar days
prior to each Interest Payment Date (whether or not a Business Day (as defined
below)). Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
be paid to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest (a "Special
Record Date") (notice whereof to be given to the Holder of this Security not
less than 10 days prior to such Special Record Date), or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange. Notwithstanding the
foregoing, interest payable on this Security at Maturity will be payable to the
person to whom principal shall be payable unless the Maturity Date is an
Interest Payment Date.
Interest on this Security will be determined by reference to the "Base
Rate" or "Base Rates" set forth on the face of this Security, which may be one
or more of (a) the Certificate of Deposit Rate, in which case this Security
will be a "Certificate of Deposit Rate Note;" (b) the Commercial Paper Rate, in
which case this Security will be a "Commercial Paper Rate Note;" (c) the
Federal Funds Rate, in which case this Security will be a "Federal Funds Rate
Note;" (d) LIBOR, in which case this Security will be a "LIBOR Note;" (e) the
Prime Rate, in which case this Security will be a "Prime Rate Note;" (f) the
Treasury Rate, in which case such Security will be a "Treasury Rate Note;" (g)
the CMT Rate, in which case this Security will be a "CMT
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<PAGE> 21
Rate Note;" or (h) such other Base Rate or interest rate formula as may be so
indicated.
If any Interest Payment Date (other than at Maturity) with respect to
this Security falls on a day that is not a Business Day, such Interest Payment
Date will be the following Business Day, except that, if this Security is a
LIBOR Note (or if the interest rate of this Security is determined with
reference to LIBOR), if such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day. If the Maturity of this Security falls on a day that is not a Business
Day, the payment of principal, premium, if any, and interest will be made on
the next succeeding Business Day, and no interest on such payment shall accrue
for the period from and after such Maturity.
The rate of interest on this Security will be reset daily, weekly,
monthly, quarterly, semi-annually, annually or such other period (each, an
"Interest Reset Date"), as specified on the face hereof. Unless otherwise
specified on the face hereof, the Interest Reset Date will be as follows: if
this Security resets daily, each Business Day; if this Security resets weekly
(except if this Security is a Treasury Rate Note), Wednesday of each week; if
this Security is a Treasury Rate Note which resets weekly, Tuesday of each
week; if this Security resets monthly, the third Wednesday of each month; if
this Security resets quarterly, the third Wednesday of March, June, September
and December; if this Security resets semiannually, the third Wednesday of two
months of each year which are six months apart, as specified on the face
hereof; and if this Security resets annually, the third Wednesday of one month
of each year, as specified on the face hereof; provided, however, that (a) the
interest rate in effect from the Original Issue Date of this Security (or any
predecessor Security) to the first Interest Reset Date will be the Initial
Interest Rate, if any, specified on the face hereof, and (b) the interest rate
in effect for the ten days immediately prior to Maturity of any instalment of
principal will be the interest rate in effect on the tenth day preceding such
Maturity. If any Interest Reset Date for this Security would otherwise be a
day that is not a Business Day, the Interest Reset Date for such Security shall
be the next succeeding Business Day, except that if this Security is a LIBOR
Note, if such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day. "Initial
Interest Rate" means the rate at which this Security will bear interest from
its Original Issue Date to the first Interest Reset Date, as specified on the
face hereof.
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<PAGE> 22
Determination of Commercial Paper Rate
If the Base Rate specified on the face hereof is the Commercial Paper
Rate, the interest rate with respect to this Security for any Interest Reset
Date shall be the Commercial Paper Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof,
as determined on the applicable Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Interest
Determination Date relating to a Commercial Paper Rate Note or any Interest
Determination Date for a Security for which the interest rate is determined
with reference to the Commercial Paper Rate (a "Commercial Paper Rate Interest
Determination Date"), the Money Market Yield (as defined below) on such date of
the rate for commercial paper having the Index Maturity specified on the face
hereof as published in H.15(519) under the heading "Commercial Paper." In the
event that such rate is not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Rate Interest
Determination Date, then the Commercial Paper Rate will be the Money Market
Yield on such Commercial Paper Rate Interest Determination Date of the rate for
commercial paper of the Index Maturity specified on the face hereof as
published in Composite Quotations under the heading "Commercial Paper" (with an
Index Maturity of one month or three months being deemed to be equivalent to an
Index Maturity of 30 days or 90 days, respectively). If such rate is not
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, then the Commercial Paper Rate will be
calculated by the Calculation Agent and will be the Money Market Yield of the
arithmetic mean of the offered rates, as of 11:00 A.M., New York City time, on
such Commercial Paper Rate Interest Determination Date, of three leading
dealers of commercial paper in New York, New York (which may include one or
more of the Agents) selected by the Calculation Agent for commercial paper of
the specified Index Maturity placed for an industrial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized statistical rating
agency; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate in effect for the applicable period will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
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<PAGE> 23
D x 360
Money Market Yield = -------------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
"Composite Quotations" means the daily statistical release entitled
"Composite 3:30 P.M. Quotations for U.S. Government Securities", or any
successor publication, published by the Federal Reserve Bank of New York.
"Index Maturity" means, with respect to this Security, the period to maturity
of the instrument or obligation on which the interest rate index is based, as
specified on the face hereof. "H.15(519)" means the weekly statistical release
entitled "Statistical Release H.15(519), Selected Interest Rates", or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
Determination of LIBOR
If the Base Rate specified on the face hereof is LIBOR, the interest
rate with respect to this Security for any Interest Reset Date shall be LIBOR
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, as specified on the face hereof, as determined on the applicable Interest
Determination Date.
LIBOR will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to an Interest Determination Date
relating to a LIBOR Note or any Interest Determination Date for a
Security for which the interest rate is determined with reference to
LIBOR (a "LIBOR Interest Determination Date"), LIBOR will be, as
specified on the face hereof, either: (a) the arithmetic mean of the
offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, commencing on the second London Business
Day immediately following that LIBOR Interest Determination Date, that
appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on that LIBOR Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars having the
Index Maturity specified on the face hereof commencing on the second
London Business Day immediately following that LIBOR Interest
Determination Date, that appears on the Telerate Page 3750 as of 11:00
a.m., London time, on that LIBOR Interest
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<PAGE> 24
Determination Date ("LIBOR Telerate"). "Reuters Screen LIBO Page"
means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBOR page
on that service for the purpose of displacing London interbank offered
rates of major banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or such other page
as may replace the 3750 page on that service or such other service or
services as may be nominated by the British Bankers' Association for
the purpose of displaying London interbank offered rates for U.S.
dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR will be determined as if LIBOR
Telerate has been specified. If fewer than two offered rates appear
on the Reuters Screen LIBO Page, or if no rate appears on the Telerate
Page 3750, as applicable, LIBOR in respect of that LIBOR Interest
Determination Date will be determined as if the parties had specified
the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear on the Reuters Screen
LIBO Page, as specified in (i) (a) above, or on which no rate appears
on Telerate Page 3750, as specified in (i) (b) above, as applicable,
LIBOR will be determined on the basis of the rates at which deposits
in U.S. dollars having the Index Maturity specified on the face hereof
are offered at approximately 11:00 a.m., London time, on that LIBOR
Interest Determination Date by four major banks in the London
interbank market selected by the Calculation Agent ("Reference Banks")
to prime banks in the London interbank market commencing on the second
London Business Day immediately following that LIBOR Interest
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative for a single transaction
in such market at such time. The Calculation Agent will request the
principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided,
LIBOR in respect of that LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
a.m., New York City time, on that LIBOR Interest Determination Date by
three major banks in the City of New York selected by the Calculation
Agent for loans in U.S. dollars to leading European banks having the
Index Maturity specified on the face hereof commencing on the
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<PAGE> 25
second London Business Day immediately following that LIBOR Interest
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative for a single transaction
in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR in effect for the applicable period
will be LIBOR in effect on such LIBOR Interest Determination Date.
Determination of Treasury Rate
If the Base Rate specified on the face hereof is the Treasury Rate,
the interest rate with respect to this Security for any Interest Reset Date
shall be the Treasury Rate plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as specified on the face hereof, as determined
on the applicable Interest Determination Date.
"Treasury Rate" means, with respect to any Interest Determination Date
relating to a Treasury Rate Note or any Interest Determination Date for a
Security for which the interest rate is determined with reference to the
Treasury Rate (a "Treasury Rate Interest Determination Date"), the rate
applicable to the most recent auction of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as such rate is published in H.15(519) under the heading "Treasury
Bills-auction average (investment)" or, if not published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Treasury Rate Interest
Determination Date, the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury.
In the event that the results of the auction of Treasury Bills having the
specified Index Maturity are not reported as provided by 3:00 P.M., New York
City time, on such Calculation Date, or if no such auction is held in a
particular week, then the Treasury Rate shall be calculated by the Calculation
Agent and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers (which may include one or more of the Agents) selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining
maturity closest to the specified Index Maturity; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting as
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<PAGE> 26
mentioned in this sentence, the Treasury Rate in effect for the applicable
period will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
Determination of CD Rate
If the Base Rate specified on the face hereof is the CD Rate, the
interest rate with respect to this Security shall be the CD Rate plus or minus
the Spread, if any, or multiplied-by the Spread Multiplier, if any, as
specified on the face hereof, as determined on the applicable Interest
Determination Date.
"CD Rate" means, with respect to any Interest Determination Date
relating to a Certificate of Deposit Rate Note or any Interest Determination
Date for a Security for which the interest rate is determined with reference to
the Certificate of Deposit Rate (a "Certificate of Deposit Rate Interest
Determination Date"), the rate on such date for negotiable certificates of
deposit having the Index Maturity specified on the face hereof as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)")
under the heading "CDs (Secondary Market)." In the event such rate is not
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Certificate of Deposit Rate Interest Determination Date, then the
Certificate of Deposit Rate will be the rate on such Certificate of Deposit
Rate Interest Determination Date for negotiable certificates of deposit of the
Index Maturity specified on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not published in either H.15(519) or Composite Quotations by 3:00 P.M.,
New York City time, on such Calculation Date, then the Certificate of Deposit
Rate on such Certificate of Deposit Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such
Certificate of Deposit Rate Interest Determination Date, of three leading
nonbank dealers in negotiable United States dollar certificates of deposit in
New York, New York (which may include one or more of the Agents) selected by
the Calculation Agent for negotiable certificates of deposit of major United
States money center banks in the market for negotiable certificates of deposit
with a remaining maturity closest to the Index Maturity specified on the face
hereof in an amount that is representative for a single transaction in that
market at that time; provided, however, that if the
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<PAGE> 27
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Certificate of Deposit Rate in effect for the
applicable period will be the Certificate of Deposit Rate in effect on such
Certificate of Deposit Rate Interest Determination Date.
Determination of CMT Rate
If the Base Rate specified on the face hereof is the CMT Rate, the
interest rate with respect to this Security shall be the CMT Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, as
specified on the face hereof, as determined on the applicable Interest
Determination Date.
"CMT Rate" means, with respect to any Interest Determination Date
relating to a Security for which the interest rate is determined with reference
to the CMT Rate (a "CMT Rate Interest Determination Date"), the rate displayed
on the Designated CMT Telerate Page under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately 3:45
P.M.," under the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in
which the related CMT Rate Interest Determination Date occurs. If such rate is
no longer displayed on the relevant pages or is not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for such CMT
Rate Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published in the relevant H.15(519).
If such rate is no longer published or is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
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<PAGE> 28
P.M., New York City time, on such CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York (which may include the Agent or its affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the
next highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of at
least $100 million. If three or four (and not five) of such Reference Dealers
are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided however, that if fewer than
three Reference Dealers so selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in
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<PAGE> 29
H.15(519). If no such page is specified on the face hereof, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be 2 years.
Determination of Federal Funds Rate
If the Base Rate specified on the face hereof is the Federal Funds
Rate, the interest rate with respect to this Security for any Interest Reset
Date shall be the Federal Funds Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof,
as determined on the applicable Interest Determination Date.
"Federal Funds Rate" means, with respect to any Interest Determination
Date relating to a Federal Funds Rate Note or any Interest Determination Date
for a Security for which the interest rate is determined with reference to the
Federal Funds Rate (a "Federal Funds Rate Interest Determination Date"), the
rate of interest on that day for Federal Funds as published in H.15(519) under
the heading "Federal Funds (Effective)." In the event such rate is not
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, then the Federal Funds
Rate will be the rate on such Federal Funds Rate Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on such Calculation Date, the
Federal Funds Rate on such Federal Funds Rate Interest Determination Date will
be calculated by the Calculation Agent and will be the arithmetic mean of the
rates for the last transaction in overnight Federal Funds arranged by three
leading dealers of Federal Funds transactions in New York, New York (which may
include one or more of the Agents) selected by the Calculation Agent as of 9:00
A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the dealers so selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate in effect for the applicable period will be the Federal Funds Rate
in effect on such Federal Funds Rate Interest Determination Date.
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<PAGE> 30
Determination of Prime Rate
If the Base Rate specified on the face hereof is the Prime Rate, the
interest rate with respect to this Security for any Interest Reset Date shall
be the Prime Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified on the face hereof, as determined on the
applicable Interest Determination Date.
"Prime Rate" means, with respect to any Interest Determination Date
relating to a Prime Rate Note or any Security for which the interest rate is
determined with reference to the Prime Rate (a "Prime Rate Interest
Determination Date"), the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen NYMF Page (as defined
below) as such bank's prime rate or base lending rate as in effect for such
Prime Rate Interest Determination Date. If fewer than four such rates but more
than one such rate appear on the Reuters Screen NYMF Page for such Prime Rate
Interest Determination Date, the Prime Rate shall be the arithmetic mean of the
prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent. If fewer than two such rates appear on
the Reuters Screen NYMF Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City of New York
by three substitute banks or trust companies organized and doing business under
the laws of the United States, or any State thereof, having total equity
capital of at least $500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or trust
companies selected as aforesaid are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest Determination Date
will be the Prime Rate in effect on such Prime Rate Interest Determination
Date. "Reuters Screen NYMF Page" means the display designated as page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
All percentages resulting from any calculation on Securities will be
rounded, if necessary, to the nearest
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<PAGE> 31
one-hundred thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 7.654325% (or .07654325) being rounded
to 7.65433% (or .0765433) and 7.654324% (or .07654324) being rounded to
7.65432% (or .0765432)), and all dollar amounts used in or resulting from such
calculation on the Securities will be rounded to the nearest cent (with
one-half cent being rounded upwards).
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition, the interest
rate hereon shall in no event be higher than the maximum rate permitted by
Massachusetts law, as the same may be modified by United States law of general
application. If an Interest Payment Date specified on the face hereof would
otherwise be a day that is not a Business Day, such Interest Payment Date will
be the next succeeding Business Day, except that in the case of a LIBOR Note,
if such day is in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day.
Unless otherwise specified on the face of this Security, "Business
Day" means any day that is not a Saturday or Sunday and that, in Boston,
Massachusetts or Providence, Rhode Island, is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
close.
The Interest Determination Date pertaining to an Interest Reset Date
for (a) a Commercial Paper Rate Note (the "Commercial Paper Interest
Determination Date"), (b) a CD Rate Note (the "CD Interest Determination
Date"), (c) a CMT Rate Note (the "CMT Interest Determination Date"), (d) a
Federal Funds Rate Note (the "Federal Funds Interest Determination Date") or
(e) a Prime Rate Note (the "Prime Interest Determination Date") will be the
second Business Day preceding the Interest Reset Date with respect to such
Security. The Interest Determination Date pertaining to an Interest Reset Date
for a LIBOR Note (the "LIBOR Interest Determination Date") will be the second
London Business Day preceding such Interest Reset Date. "London Business Day"
means any day on which dealings in deposits in U.S. dollars are transacted in
the London interbank market. The Interest Determination Date pertaining to an
Interest Reset Date for a Treasury Rate Note (the "Treasury Interest
Determination Date") will be the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. Treasury bills
are normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on the following
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<PAGE> 32
Tuesday, except that such auction may be held on the preceding Friday. If, as
the result of a legal holiday, an auction is so held on the preceding Friday,
such Friday will be the Treasury Interest Determination Date pertaining to the
Interest Reset Date occurring in the next succeeding week. If an auction date
shall fall on any Interest Reset Date for a Treasury Rate Note, then such
Interest Reset Date shall instead be the first Business Day immediately
following such auction date. The Interest Determination Date pertaining to a
Security, the interest rate of which is determined with reference to two or
more Base Rates, will be the latest Business Day which is at least two Business
Days prior to the Interest Reset Date for such Security on which each Base Rate
is determinable. Each Base Rate shall be determined and compared on such date,
and the applicable interest rate shall take effect on the related Interest
Reset Date.
"Calculation Date", where applicable, means the date on which the
Calculation Agent is to calculate the interest rate which is, if the Interest
Rate Basis specified on the face hereof is the Commercial Paper Rate, the
Treasury Rate, the CMT Rate, the CD Rate or the Federal Funds Effective Rate,
the tenth calendar day after the related Interest Determination Date, or if any
such day is not a Business Day, the next succeeding Business Day or, if the
Interest Rate Basis specified on the face hereof is LIBOR or the Prime Rate,
the related Interest Determination Date.
Upon the request of the Holder hereof, the Calculation Agent will
provide the interest rate then in effect, and, if different, the interest rate
which will become effective as a result of a determination made on the most
recent Interest Determination Date with respect to this Security. The
"Calculation Agent" means the Company or the agent appointed by the Company to
calculate interest rates under the circumstances specified above. Unless
otherwise provided on the face hereof, the Calculation Agent will be the
Trustee.
Interest payments hereon shall be the amount of interest accrued to,
but excluding, the Interest Payment Date; provided, however, that if the
Interest Reset Dates with respect to any Security are daily or weekly, interest
payable on any Interest Payment Date, other than interest payable (with respect
to such principal) on any date on which principal of any such Security is
payable, will include interest accrued to and including the next preceding
Regular Record Date.
Accrued interest hereon from the Original Issue Date specified on the
face hereof or from the last date to which interest has been paid or duly
provided for, as the case may
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be, is calculated by multiplying the face amount hereof by an accrued interest
factor. Such accrued interest factor is computed by adding the interest factor
calculated for each day from the Original Issue Date or from the last date to
which interest has been paid or duly provided for, as the case may be, to the
date for which accrued interest is being calculated. The interest factor for
each such day is computed by dividing the interest rate applicable to such date
by 360, in the case of Commercial Paper Rate Notes, LIBOR Notes, CD Rate Notes,
Federal Funds Rate Notes and Prime Rate Notes, or by the actual number of days
in the year, in the case of Treasury Rate Notes and CMT Rate Notes.
If this Security is a Global Security (as specified on the face
hereof), this Security is exchangeable in whole for definitive Securities of
this series of like tenor and of an equal aggregate principal amount in
accordance with the Indenture. Any definitive Securities of this series issued
in exchange for this Global Security shall be registered in the name or names
of such Person or Persons as the Holder hereof shall instruct the Registrar.
Except as provided above, owners of beneficial interests in this Global
Security will not be entitled to receive physical delivery of Securities in
definitive form and will not be considered the Holders thereof for any purpose
under the Indenture.
Any exchange of a Global Security for one or more definitive
Securities of this series will be made at the office or agency of the Registrar
in Providence, Rhode Island or The City of New York.
If this Security is a Global Security, except as provided in the next
paragraph, no beneficial owner of any portion of this Global Security shall be
entitled to receive payment of accrued interest hereon until this Global
Security has been exchanged for one or more definitive Securities of this
series, as provided herein and in the Indenture.
If this Security is a Global Security, if a definitive Security or
Securities of this series are issued in exchange for this Global Security after
the close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or
agency on the related Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of defaulted interest, interest or defaulted
interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Security,
but will be payable on such Interest Payment Date or proposed date for
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payment, as the case may be, only to the Holder hereof, and the Holder hereof
will undertake in such circumstances to credit such interest to the account or
accounts of the Persons who were the beneficial owners of any portion of this
Global Security on such Regular Record Date or Special Record Date, as the case
may be.
Payment of the principal of (and premium, if any) and any such
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in Providence, Rhode Island, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in the
Security register or by transfer to an account maintained by the payee with a
bank in The City of New York (so long as the applicable Paying Agent has
received proper and timely (as determined by the Paying Agent) transfer
instructions in writing).
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture or its successors thereunder,
by the manual signature of one of its authorized officers, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
MEDITRUST
Dated: By:
----------------------------- --------------------------------
President
[Seal] Attest:
----------------------------
Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By:
-------------------------------
Authorized Officer
[SEAL]
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<PAGE> 36
[FORM OF REVERSE]
ADDITIONAL PROVISIONS
1. REGISTRAR AND AGENTS. Initially, Fleet National Bank will act
as Registrar, Paying Agent, Calculation Agent and agent for service of notices
and demands. The Company may change any Registrar, co-registrar, Paying Agent,
Calculation Agent and agent for service of notices and demands without notice.
The Company or any of its Subsidiaries may act as Paying Agent. The address of
Fleet National Bank is 111 Westminster Street, R1M0199, Providence, Rhode
Island 02903-2305.
2. INDENTURE, LIMITATIONS. The Company issued the Securities as
a series of its securities under an Indenture dated as of July 26, 1995 as
supplemented by a Third Supplemental Indenture dated as of August 10, 1995 (the
"Indenture") between the Company and Fleet National Bank, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code Section Section 77aaa-77bbbb) as
in effect on the date of the Indenture. The Securities are subject to all such
terms, and the Holders of the Securities are referred to the Indenture and said
Act for a statement of such terms.
The Securities are general unsecured obligations of the Company
limited to $200,000,000 principal amount (or if the Securities of this series
are to be Original Issue Discount Securities, such principal amount as shall
result in an aggregate initial offering price of Securities equivalent to not
more than $200,000,000). The Indenture imposes certain limitations on the
ability of the Company to, among other things, incur certain liens and certain
additional indebtedness, make payments in respect of its shares of beneficial
interest, merge or consolidate with any other Person and sell, lease, transfer
or dispose of its properties or assets.
3. OPTIONAL REDEMPTION BY THE COMPANY; PAYMENT UPON ACCELERATION.
If so specified on the face of this Security, the Securities may be redeemed at
any time at the option of the Company, in whole or in part, at a redemption
price equal to the principal amount of the Securities being redeemed plus
accrued interest thereon to the redemption date.
From and after notice has been given as provided in the Indenture, if
funds for the redemption of any Securities called for redemption shall have
been made available on such redemption date, such Securities will cease to bear
interest on the date fixed for such redemption specified in such
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notice and the only right of the Holders of the Securities will be to receive
payment of the Redemption Price.
Notice of any optional redemption of any Securities will be given to
Holders at their addresses, as shown in the Security register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Securities held by such Holder to be redeemed.
The Company will notify the Trustee at least 60 days prior to the
redemption date (or such shorter period as satisfactory to the Trustee) of the
aggregate principal amount of Securities to be redeemed and the redemption
date. If less than all the Securities are to be redeemed at the option of the
Company, the Trustee shall select, pro rata or by lot, Securities to be
redeemed in whole or in part. Securities may be redeemed in part in the
minimum authorized denomination for Securities or in any integral multiple
thereof.
Upon any acceleration of the Securities, the Company shall pay in
respect thereof an amount equal to the sum of the outstanding principal amount
of the Securities so accelerated plus accrued interest to the date of
acceleration.
5. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. A Holder may register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not (i) 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 and ending at the close of business on the day of selection,
(ii) 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 redeemed in part, or (iii) 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 and ending at the close of business on the day interest is to be
paid on Securities of such series.
6. PERSONS DEEMED OWNERS. The registered Holder of a Security
may be treated as the owner of it for all purposes.
7. UNCLAIMED MONEY. If money for the payment of principal or
interest on any Securities remains unclaimed
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for three years, the Trustee and the Paying Agent will pay the money back to
the Company at its request, unless otherwise required by law. Thereafter,
Holders may look only to the Company for payment.
8. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. The Indenture will
be discharged and cancelled except for certain sections thereof upon payment of
all the Securities, or upon the irrevocable deposit with the Trustee of funds
or U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment date or Redemption Date.
9. SUPPLEMENTAL INDENTURE. Subject to certain exceptions, the
Indenture may be amended or supplemented with respect to the Securities with
the consent of the Holders of at least a majority in principal amount of the
Securities then outstanding and any existing default or compliance with any
provision may be waived with the consent of the Holders of the majority in
principal amount of the Securities then outstanding. Without the consent of or
notice to any Holder, the Company may supplement the Indenture, to, among other
things, provide for uncertificated Securities, cure any ambiguity, defect or
inconsistency, or make any other change that does not adversely affect the
interest rights of any Holder.
10. SUCCESSORS. Upon satisfaction of the conditions provided in
the Indenture, if a successor to the Company assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
11. DEFAULTS AND REMEDIES. If an Event of Default with respect to
the Securities, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of a majority in principal amount of Securities may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it, subject to the provisions
of the TIA, before it enforces the Indenture or the Securities. Subject to
certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power with respect to the Securities. The Trustee may withhold from Holders
of Securities notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee
as to the absence of any Default or Event of Default.
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<PAGE> 39
12. TRUSTEE DEALINGS WITH THE COMPANY. Fleet National Bank, the
Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates as if it
were not Trustee.
13. NO RECOURSE AGAINST OTHERS. No shareholder, trustee or
officer, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the 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
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.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6,
1985, AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE
SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME
"MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
"TRUSTEES," BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
14. AUTHENTICATION. This Security shall not be valid until the
Trustee signs the certificate of authentication on the reverse side of this
Security.
15. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and any supplemental indentures thereto.
It also will furnish the text of this Security in larger type. Requests may be
made to: MEDITRUST, 197 First Avenue, Needham Heights, Massachusetts 02194,
Attention: Lisa P. McAlister, Vice President and Treasurer.
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<PAGE> 40
ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
................................................................................
................................................................................
................................................................................
................................................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint....................................................agent
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:...........................................................................
Your signature:.................................................................
(Sign exactly as your name appears on the reverse side of this
Security)
Signature Guaranteed By:........................................................
Note: Signature must be guaranteed by a member firm
of the New York Stock Exchange or a commercial bank
or trust company.
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<PAGE> 41
ARTICLE TWO
Additional Provisions
The following provisions in addition to those contained in the
Indenture will apply to the Notes:
(a) Limitation on Liens.
The Company will not pledge or otherwise subject to any lien,
any of its or its Subsidiaries' property or assets unless the Securities are
secured by such pledge or lien equally and ratably with all other obligations
secured thereby so long as such other obligations shall be so secured; provided
that such covenant will not apply to liens securing obligations which do not in
the aggregate at any one time outstanding exceed 10% of Consolidated Net
Tangible Assets of the Company and its consolidated Subsidiaries and also will
not apply to:
(1) Any lien or charge on any property, tangible or
intangible, real or personal, existing at the time of acquisition or
construction of such property (including acquisition through merger or
consolidation) or given to secure the payment of all or any part of the
purchase or construction price thereof or to secure any indebtedness incurred
prior to, at the time of, or within one year after, the acquisition or
completion of construction thereof for the purpose of financing all or any part
of the purchase or construction price thereof;
(2) Any liens securing the performance of any contract or
undertaking of the Company not directly or indirectly in connection with the
borrowing of money, obtaining of advances or credit or the securing of debts,
if made and continuing in the ordinary course of business;
(3) Any lien in favor of the United States or any state
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure progress, advance, or other payments
pursuant to any contract or provision of any statute;
(4) Mechanics', materialmen's, carriers', or other like
liens arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are being
contested in good faith;
(5) Any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body created
or approved by law or governmental regulations, which is required by law or
governmental regulation as a condition to the transaction of
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any business, or the exercise of any privilege, franchise or license;
(6) Any liens for taxes, assessments or governmental
charges or levies not yet delinquent, or liens for taxes, assessments or
governmental charges or levies already delinquent but the validity of which is
being contested in good faith;
(7) Liens (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are being
contested in good faith and in the case of judgment liens, execution thereof is
stayed;
(8) Liens relating to secured indebtedness of the Company
outstanding on June 30, 1995; and
(9) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any lien
referred to in the foregoing clauses (1) to (8) inclusive, of this subsection
(a), provided, however, that the amount of any and all obligations and
indebtedness secured thereby shall not exceed the amount thereof so secured
immediately prior to the time of such extension, renewal or replacement and
that such extension, renewal or replacement shall be limited to all or a part
of the property which secured the charge or lien so extended, renewed or
replaced (plus improvements on such property).
As used herein:
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) less (i)
all current liabilities and (ii) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expenses and other like intangibles of
the Company and its consolidated Subsidiaries, all as set forth on the most
recent balance sheet of the Company and its consolidated Subsidiaries and
prepared in accordance with generally accepted accounting principles; and
"Subsidiary" means an affiliate controlled by the Company directly, or
indirectly through one or more intermediaries.
(b) Limitation on Incurrence of Obligations for
Borrowed Money.
The Company will not create, assume, incur or otherwise become
liable in respect of, any
(1) Senior Debt unless the aggregate outstanding
principal amount of Senior Debt of the Company will not, at the time of such
creation, assumption or incurrence and after giving affect thereto and to any
concurrent
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transactions, exceed the greater of (i) 150% of Capital Base, or (ii) 225% of
Tangible Net Worth; and
(2) Non-Recourse Debt unless the aggregate principal
amount of Senior Debt and Non-Recourse Debt outstanding of the Company will
not, at the time of such creation, assumption or incurrence and after giving
affect thereto and to any concurrent transactions, exceed 225% of Capital Base.
For any period during which the Company shall have a Subsidiary or
Subsidiaries, the limitations contained in this subsection (b) shall be applied
to the consolidated financial statements of the Company and its Subsidiaries.
As used herein:
"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt;
"Capital Lease" means at any time any lease of Property which, in
accordance with generally accepted accounting principles, would at such time be
required to be capitalized on a balance sheet of the lessee;
"Capital Lease Obligation" means at any time the amount of the
liability in respect of a Capital Lease which, in accordance with generally
accepted accounting principles, would at such time be required to be
capitalized on a balance sheet of the lessee;
"Debt" when used with respect to any Person means (i) its
indebtedness, secured or unsecured, for borrowed money; (ii) liabilities
secured by any Lien existing on Property owned by such Person; (iii) Capital
Lease Obligations, and the present value of all payments due under any
arrangement for retention of title (discounted at a rate per annum equal to the
average interest borne by all outstanding Securities determined on a weighted
average basis and compounded semi-annually) if such arrangement is in substance
an installment purchase or an arrangement for the retention of title for
security purposes; and (iv) guarantees of obligations of the character
specified in the foregoing clauses (i), (ii) and (iii) to the full extent of
the liability of the guarantor (discounted to the present value, as provided in
the foregoing clause (iii), in the case of guarantees of title retention
arrangements);
"Liabilities" means, at any date, the items shown as liabilities on
the balance sheet of the Company, except any items of deferred income,
including capital gains;
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
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limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and all other title exceptions and encumbrances affecting Property. For
all purposes of this Indenture, the Company shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement, Capital Lease or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person for security
purposes;
"Non-Recourse Debt" when used with respect to any Person, means any
Debt secured by, and only by, property on or with respect to which such Debt is
incurred where the rights and remedies of the holder of such Debt in the event
of default do not extend to assets other than the property constituting
security therefore;
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof;
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible;
"Senior Debt" means all Debt other than Non-Recourse Debt and
Subordinated Debt;
"Subordinated Debt" means unsecured Debt of the Company which is
issued or assumed pursuant to, or evidenced by, an indenture or other
instrument which contains provisions for the subordination of such Debt (to
which appropriate reference shall be made in the instruments evidencing such
Debt if not contained therein) to the Securities (and, at the option of the
Company, if so provided, to other Debt of the Company, either generally or as
specifically designated);
"Subsidiary" means an affiliate controlled by the Company directly, or
indirectly through one or more intermediaries;
"Tangible Assets" means all assets of the Company (including assets
held subject to Capital Leases and other arrangements described in the last
sentence of the definition of "Lien") except: (i) deferred assets, other than
prepaid insurance, prepaid taxes and deposits; (ii) patents, copyrights,
trademarks, trade names, franchises, goodwill, experimental expense and other
similar
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intangibles; and (iii) unamortized debt discount and expense; and
"Tangible Net Worth" means, with respect to the Company at any date,
the net book value (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Tangible Assets of
the Company at such date minus the amount of its Liabilities at such date.
(c) Optional Redemption by the Company; Payment
Upon Acceleration.
If so specified on the face of the Notes, the Notes may be
redeemed at any time at the option of the Company, in whole or in part, at a
redemption price equal to the sum of (i) the principal amount of the Notes
being redeemed plus accrued interest thereon to the redemption date and (ii)
with respect to Fixed Rate Notes, the Make-Whole Amount, if any, with respect
to such Notes (the "Redemption Price"). The Make-Whole Amount shall be
determined by the Trustee and such determination shall be binding and
conclusive, absent manifest error.
From and after notice has been given as provided in the
Indenture, if funds for the redemption of any Notes called for redemption shall
have been made available on such redemption date, such Notes will cease to bear
interest on the date fixed for such redemption specified in such notice and the
only right of the Holders of the Notes will be to receive payment of the
Redemption Price.
Notice of any optional redemption of any Notes will be given
to Holders at their addresses, as shown in the Note register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
The Company will notify the Trustee at least 45 days prior to
the redemption date (or such shorter period as satisfactory to the Trustee) of
the aggregate principal amount of Notes to be redeemed and the redemption date.
If less than all the Notes are to be redeemed at the option of the Company, the
Trustee shall select, pro rata or by lot, Notes to be redeemed in whole or in
part. Notes may be redeemed in part in the minimum authorized denomination for
Notes or in any integral multiple thereof.
If so specified on the face of the Notes, upon any
acceleration of the Notes, the Company shall pay in respect thereof an amount
equal to the sum of (i) the outstanding principal amount of the Notes so
accelerated plus accrued interest to the date of acceleration and (ii) with
respect
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to the Fixed Rate Notes, the Make-Whole Amount, if any, with respect to such
Notes.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Note, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest
(exclusive of any interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid;
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding in each of such relevant periods
to the nearest month. For the purposes of calculating the Reinvestment Rate,
the most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used; and
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
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ARTICLE THREE
Miscellaneous
The Indenture, except as amended herein, is in all respects ratified
and confirmed and this Third Supplemental Indenture and all its provisions
herein contained shall be deemed a part thereof in the manner and to the extent
herein and therein provided.
The terms used in this Third Supplemental Indenture, but not defined
herein, shall have the meanings assigned thereto in the Indenture.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
This Third Supplemental Indenture may be simultaneously executed in
any number of counterparts, and all such counterparts executed and delivered,
each as an original, shall constitute one and the same instrument.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6,
1985, AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE
SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME
"MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
"TRUSTEES," BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, as of the day and year first above
written.
MEDITRUST
By:
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Name: Lisa P. McAlister
Title: Vice President and
Treasurer
FLEET NATIONAL BANK AS TRUSTEE
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By:
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Name:
Title:
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<PAGE> 49
STATE OF MASSACHUSETTS )
) ss.:
COUNTY OF NORFOLK )
On the ____ day of August, 1995, before me personally came
Lisa P. McAlister, to me known, who, being by me duly sworn, did depose and say
that she is the Treasurer and Vice President of Meditrust, one of the parties
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Trustees of
said business trust; and that she signed her name thereto by like authority.
---------------------------------
STATE OF RHODE ISLAND )
) ss.:
COUNTY OF __________ )
On the ____ day of ____________,____, before me personally
came _______________________________, to me known, who, being by me duly sworn,
did depose and say that he is _____________________ of _______________________,
one of the parties described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
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