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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):
July 27, 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
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Form of Second Indenture Supplement
4.2 Form of 8.54% Convertible Senior Note due July 1, 2000
(included in Exhibit 4.1)
4.3 Form of 8.56% Convertible Senior Note due July 1, 2002
(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
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July 27, 1995 /s/ Lisa P. McAlister
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Lisa P. McAlister
Vice President and Treasurer
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EXHIBIT 4.1
FORM OF INDENTURE SUPPLEMENT
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===============================================================================
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 28, 1995
to
INDENTURE
Dated as of July 26, 1995
between
MEDITRUST
and
FLEET NATIONAL BANK,
as Trustee
8.54% Convertible Senior Notes
due July 1, 2000
and
8.56% Convertible Senior Notes
due July 1, 2002
===============================================================================
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of July 28, 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 that certain 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 an individual series of securities
thereunder, upon the Company and the Trustee entering into a supplemental
indenture to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its two series of securities
thereunder, designated its (i) 8.54% Convertible Senior Notes due July 1, 2000
(the "8.54% Notes") and (ii) 8.56% Convertible Senior Notes due July 1, 2002
(the "8.56% Notes" and together with the 8.54% Notes the "Notes"); and
WHEREAS, all acts necessary to constitute this Second 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:
ARTICLE ONE
THE TERMS OF THE NOTES
In accordance with Sections 2.01 and 2.02 of the Indenture, the Company
will issue (i) its series of 8.54% Notes in the aggregate principal amount of
$43,334,000 and (ii) its series of 8.56% Notes in the aggregate principal amount
of $51,666,000. Each Note shall be substantially in the following form:
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MEDITRUST
(1)% Convertible Senior Note Due (2)
*% *%
DUE ** DUE**
No. _____ No.
MEDITRUST, a Massachusetts business trust, promises to pay to
SPECIMEN
or registered assigns, the principal sum of _______________________ Dollars, on
_________________________.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Additional provisions of this Security are set forth on the reverse
side of this Security.
_____________, 19____
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(1) 8.54% in the case of the 8.54% Notes and 8.56% in the case of the 8.56%
Notes
(2) July 1, 2000 in the case of the 8.54% Notes and July 1, 2002 in the case
of the 8.56% Notes
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MEDITRUST
By: By:
Secretary President
CERTIFICATE OF AUTHENTICATION
FLEET NATIONAL BANK, as Trustee, certifies that this is one of the Securities
referred to in the within mentioned Indenture.
By:
Authorized Officer SEAL
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MEDITRUST
(3)% Convertible Senior Notes Due (4)
SECTION 1. INTEREST.
Meditrust, a Massachusetts business trust (the "Company"), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest semiannually on January 1 and July 1
of each year beginning January 1, 1996. The Company will pay interest on overdue
principal (including any overdue required or optional prepayment of principal)
and premium, if any, and (to the extent legally enforceable) on any overdue
installment of interest at the rate of (5)% per annum after the date due,
whether by acceleration or otherwise, until paid. Interest on the Securities
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from July __, 1995; provided that, if there is no
existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 2. METHOD OF PAYMENT.
The Paying Agent will pay interest (except defaulted interest) on the
Securities from monies provided by the Company to the persons who are the
registered Holders of the Securities at the close of business on the June 15 or
December 15 next preceding the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Paying Agent
will pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts. The Paying
Agent, however, may pay principal and interest by its check payable in such
money. It may mail an interest check to a Holder's registered address or in the
case of any institutional Holder interest payments may be made by wire transfer
to such bank account in the United States as such Holder shall have designated
to the Company in the Note Purchase
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(3) 8.54% in the case of the 8.54% Notes and 8.56% in the case of the 8.56%
Notes
(4) July 1, 2000 in the case of the 8.54% Notes and July 1, 2002 in the case
of the 8.56% Notes
(5) 10.54% in the case of the 8.54% Notes and 10.56% in the case of the 8.56%
Notes
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Agreement dated as of July 1, 1995 between the Company and the institutional
Holders party thereto or in any other written agreement entered into between the
Company and any such Holder, a copy of which shall be furnished to the Paying
Agent by the Company.
SECTION 3. REGISTRAR AND AGENTS.
Initially, Fleet National Bank will act as Registrar, Paying Agent,
Conversion Agent and agent for service of notices and demands. The Company may
change any Registrar, Co-registrar, Paying Agent, Conversion Agent and agent for
service of notices and demands without notice. The Company or any of its
Subsidiaries may act as Paying Agent or Conversion Agent. The address of Fleet
National Bank is 111 Westminster Street, R1M0199, Providence, Rhode Island
02903-2305.
SECTION 4. INDENTURE, LIMITATIONS.
The Company issued the Securities as series of its securities under an
Indenture dated as of July 26, 1995 as supplemented by a supplemental indenture
dated as of July 28, 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 ss.ss.
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 senior unsecured obligations of the Company
limited to $43,334,000 in aggregate principal amount in the case of the 8.54%
Notes and $51,666,000 aggregate principal amount in the case of the 8.56% Notes.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, 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.
SECTION 5. OPTIONAL REDEMPTION BY THE COMPANY; PAYMENT UPON ACCELERATION.
Section 5.1. The 8.54% Notes may not be prepaid. Upon compliance with
ss.5.2, the Company shall have the privilege at any time and from time to time,
on or after, but not prior to July 1, 2001 of prepaying the outstanding 8.56%
Notes, either in whole or in part (but if in part then in a minimum principal
amount of $1,000,000), by payment of the principal amount of the 8.56% Notes, or
the portion thereof to be prepaid, together with accrued interest thereon to the
date of such prepayment, but without premium.
Section 5.2. The Company will give written notice of any prepayment of
the 8.56% Notes pursuant to ss.5.1 to the Trustee and each Holder thereof not
less than 30 days nor more than 60 days before the date fixed for such optional
prepayment specifying (i) such
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date, (ii) the principal amount of the Holder's Notes to be prepaid on such date
and the aggregate principal amount of all Notes to be prepaid on such date and
(iii) the accrued interest applicable to the prepayment. Such notice of
prepayment shall also certify all facts, if any, which are conditions precedent
to any such prepayment. Notice of prepayment having been so given, the aggregate
principal amount of the 8.56% Notes specified in such notice, together with
accrued interest thereon, payable with respect thereto shall become due and
payable on the prepayment date specified in said notice.
Section 5.3. All partial prepayments of the 8.56% Notes pursuant to
ss.5.1 shall be applied on all outstanding 8.56% Notes ratably in accordance
with the unpaid principal amounts thereof.
Section 5.4. 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" shall mean in connection with any
prepayment upon acceleration of the Securities the excess, if any, of
(i) the aggregate present value as of the date of the prepayment of
each dollar of principal being prepaid and the amount of interest
(exclusive of interest accrued to the date of prepayment) that would
have been payable in respect of such dollar if such prepayment had not
been made, determined by discounting such amounts at the Reinvestment
Rate from the respective dates on which they would have been payable,
over (ii) 100% of the principal amount of the outstanding Securities
being prepaid. In no event shall the Make-Whole Amount be less than
zero. For purposes of any determination of the Make-Whole Amount:
"Reinvestment Rate" shall mean .50% plus the yield to maturity
of the United States Treasury obligations with a maturity (as compiled
by and published on Telerate Page 5 or its successor not more than five
business days immediately preceding the payment date) most nearly equal
to the remaining Life to Maturity of the Securities being prepaid. If
such rate shall not have been so published, the Reinvestment Rate in
respect of such payment date shall mean the mean of the yields to
maturity of United States Treasury obligations (as compiled by and
published in the United States Federal Reserve Bulletin or its
successor publication for each of the two weeks immediately preceding
the payment date) with a constant maturity most nearly equal to the
Life to Maturity of the Securities being prepaid. If no maturity
exactly corresponding to the Life to Maturity of the Securities being
prepaid, yields for the next longer and the next shorter published
maturities shall be calculated as aforesaid and the Reinvestment Rate
shall be interpolated from such yields on a straight-line basis
(rounding to the nearest month). If such rates shall not have been so
published,
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the Reinvestment Rate in respect of such determination date shall be
calculated pursuant to the next preceding sentence on the basis of the
arithmetic mean of the arithmetic means of the secondary market ask
rates, as of approximately 3:30 P.M., New York City time, on the last
business day of each of the two weeks preceding the payment date, for
the actively traded U.S. Treasury security or securities with a
maturity or maturities most closely corresponding to the remaining Life
to Maturity, as reported by three primary United States Government
securities dealers in New York City of national standing selected in
good faith by the Company.
"Life to Maturity" of the principal amount of the Securities
being prepaid shall mean, as of the time of any determination thereof,
the number of years (calculated to the nearest one-twelfth) which will
elapse between the date of determination and the scheduled maturity of
the Securities being prepaid.
The Make-Whole Amount shall be determined by the Trustee and such
determination shall be binding and conclusive, absent manifest error.
SECTION 6. CONVERSION.
Section 6.1. A Holder of a Security may convert such Security into
shares of beneficial interest of the Company ("Shares") at any time prior to
redemption or maturity. The initial Conversion Price is $32.625 per Share,
subject to adjustment in certain events. To determine the number of Shares
issuable upon conversion of a Security, divide the principal amount to be
converted by the Conversion Price in effect on the conversion date.
The Company will deliver a check for any fractional Share.
Section 6.2. To convert a Security, a Holder must (1) complete and sign
the conversion notice on the back of the Security, (2) surrender the Security to
the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Registrar or Conversion Agent and (4) pay any
transfer or similar tax if required. No payment or adjustment is to be made on
conversion for dividends on Shares issued on conversion. A Holder may convert a
portion of a Security if the portion is $1,000 principal amount or an integral
multiple thereof.
Section 6.3. No payment or adjustment shall be made upon any conversion
on account of any cash dividends declared for payment as of a record date prior
to the date of conversion on the Shares issued upon conversion of a Security.
Anything in the Indenture to the contrary notwithstanding, subject to the credit
described in ss.6.4, the Company shall pay all interest on the Securities or the
portion thereof surrendered for conversion accrued to the date when the
conversion notice shall have been received by the Conversion Agent. Such
interest shall be paid promptly but in no event more than 5 Business Days after
the conversion notice shall have been received by the Conversion Agent. In the
case of any Security which is converted in part only, the Company shall, upon
such conversion, execute and deliver to the Holder thereof, at the expense of
the Company, a new Security in principal
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amount equal to the unconverted portion of the Security surrendered (dated as of
the last date to which interest has been paid thereon) and otherwise of like
tenor therewith.
Section 6.4. The Company shall be entitled to deduct from the accrued
interest payable to the Holder on any Security tendered for conversion an amount
equal to the aggregate Dividend Credit attributable to the Shares issued to such
Holder upon conversion; provided that the amount of the Dividend Credit which is
credited against accrued interest payable on the Securities tendered for
conversion hereunder shall not exceed the accrued interest payable on such
Securities. The Dividend Credit per Share for any period shall be the regular
dividend per Share declared by the Board of Trustees of the Company on the
dividend declaration date immediately preceding the date of receipt of the
conversion notice (adjusted upwards or downwards to reflect the average
historical increase or decrease in the amount of such dividends over the
preceding four quarterly dividend periods) divided by the number of days in the
dividend period in respect of which such dividend was declared multiplied by the
number of days in the Dividend Credit Period. The number of days in the Dividend
Credit Period shall equal the number of days which have elapsed since the record
date for payment of dividends on Shares immediately preceding the date of
receipt of the applicable conversion notice to, but not including, the date on
which the applicable conversion notice has been received. In the event that the
dividend declared and paid by the Company on the next regularly scheduled
dividend payment date applicable to the Shares issued pursuant to a conversion
notice shall be less than the dividend used in calculating the Dividend Credit,
the Company shall pay to the Holder an additional amount equal to the difference
between the amount which would have been paid if the Dividend Credit had been
calculated on the dividend actually paid rather than the amount assumed for
purposes of the determination of the Dividend Credit.
Section 6.5. In the case of any consolidation or merger of the Company
with another entity or any reorganization or reclassification of the Shares or
other equity securities of the Company (except a split-up, combination or
reclassification, provision for which is made in the Indenture), then, as a
condition of such consolidation, merger, reorganization or reclassification,
lawful and adequate provision shall be made whereby the Holders shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the Shares immediately theretofore receivable
upon conversion of their Securities, such shares of stock, securities, assets or
cash as may (by virtue of such consolidation, merger, reorganization or
reclassification) be issued or payable with respect to or in exchange for a
number of outstanding Shares equal to the number of Shares immediately
theretofore so receivable hereunder had such consolidation, merger,
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
the Holders to the end that the provisions of this ss.6.5 (including, without
limitation, provisions for adjustment of the per share Conversion Price) shall
thereafter be applicable as nearly as may be, in relation to any shares of
stock, securities, assets or cash thereafter deliverable upon conversion of such
Securities.
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In the case of (i) any merger or consolidation in which the Shares
shall be exchanged for any consideration other than common stock (or its
equivalent) of the surviving entity, or (ii) the sale of all or substantially
all of the assets of the Company to another entity, the "Fair Market Value" per
Share of such consideration shall be determined as of the effective date of such
merger or consolidation or sale of assets, as the case maybe. Upon the written
request of any Holder delivered as hereinafter provided, in lieu of the cash and
other consideration per Share to be received by the holders of Shares, the
Conversion Price per Share shall be adjusted so that such Holder shall have the
right to receive the number of shares of common stock (or its equivalent) of the
surviving entity (based on the Fair Market Value of such common stock on the
effective date of such acquisition) so that the Holder will be in the same
relative economic position with respect to the common stock (or its equivalent)
of the surviving entity as such Holder would have been in if all of the
outstanding Shares had been exchanged exclusively for common stock (or its
equivalent) of the surviving entity. Notice of any election by a Holder pursuant
to this ss.6.5 shall be made by such Holder not more than 15 Business Days after
delivery of notice of the event giving rise to such election. The Company shall
not effect any such consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof, the successor entity (if other
than the Company) resulting from such consolidation or merger or the entity
purchasing such assets shall assume by written instrument executed and mailed or
delivered to each Holder, the obligation to deliver to such Holder such shares
of stock, securities, assets or cash as, in accordance with the foregoing
provisions, such Holder may be entitled to receive. Nothing contained in this
ss.6.5 or in ss.6 generally shall permit a merger or consolidation or sale of
assets otherwise prohibited by the provisions of the Indenture.
Section 6.6. Notwithstanding the foregoing, a Holder may not convert
any Security, and such Security shall not be convertible by any Holder, if as a
result of such conversion any Person would then be deemed to own Shares in
excess of the limits prescribed in Article VI, Section 6.15 of the Restated
Declaration of Trust, as amended, of the Company. The Company will furnish a
copy of said Section 6.15 and of other applicable provisions of its Declaration
of Trust relating to certain restrictions on transfer of its Shares and on
Company rights to redeem Shares to any Holder upon request and without charge.
Section 6.7. If the Market Price for Shares for any period of 30
consecutive trading days (the "Computation Period") shall equal or exceed 130%
of the average of the Conversion Price per Share on each day of such Computation
Period, the Company may, at its election, give written notice to each Holder
that the Securities (or such portion thereof as shall be specified by the
Company) will be converted into Shares on the date (the "Mandatory Conversion
Date") set forth in such notice (the "Company Conversion Notice"). The
conversion right set forth in this ss.6.7 may be exercised by the Company from
time to time with respect to less than all of the Securities then outstanding
but the aggregate principal amount of Securities to be converted pursuant to
each Company Conversion Notice shall be not less than $5,000,000 and shall be
allocated pro rata over all Securities then outstanding based on the principal
amount of such Securities held by each Holder. The Company Conversion Notice
shall be given within 10 Business Days following the expiration of the
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applicable Computation Period. The Mandatory Conversion Date shall be not less
than 20 nor more than 30 days after the date of the Company Conversion Notice.
The Company Conversion Notice shall (i) refer to this ss.6.7, (ii) set forth the
Market Price for the Shares on each day of the Computation Period, (iii) set
forth the Market Price of the Shares as of the date immediately preceding the
date of the Company Conversion Notice, (iv) set forth the principal amount of
the Holder's Securities to be converted on such date and the aggregate principal
amount of all Securities to be converted on such date, and (v) set forth the
accrued interest to be paid by the Company on the Mandatory Conversion Date. At
any time following receipt of the Company Conversion Notice and prior to the
Mandatory Conversion Date, each Holder may exercise its conversion rights in
accordance with the provisions of this ss.6. On the Mandatory Conversion Date
(i) the principal amount of the Securities to be converted shall be deemed
tendered for conversion into Shares at the applicable Conversion Price per
Share, and (ii) anything in the Indenture to the contrary notwithstanding, the
Company shall pay all interest which shall have accrued on the principal amount
of the Securities then converted from the last interest payment date to, but not
including, the Mandatory Conversion Date; provided that if the Market Price for
Shares shall be less than the Conversion Price per Share on the last trading day
immediately preceding the Mandatory Conversion Date, the mandatory conversion
shall not be effected and no conversion of the Securities shall occur. All
Shares delivered on a Mandatory Conversion Date shall be freely transferable by
the Holder of such Shares without compliance with the prospectus delivery
requirements of the Securities Act. The Company Conversion Notice given to each
Holder pursuant to this ss.6.7, shall be sent by both facsimile communication
and overnight courier service.
The Market Price for Shares for each day of such thirty trading day
period shall be determined as follows: (i) if the Shares shall at the time be
listed or admitted to unlisted trading privileges on the New York Stock
Exchange, on the basis of the last reported sale price regular way of the Shares
on the composite tape (or if the Shares at the time are not so listed or
admitted to unlisted trading privileges on the New York Stock Exchange but are
listed or admitted to unlisted trading privileges on another national securities
exchange, on the basis of the last reported sale price regular way on such
national securities exchange on which the Shares are at the time listed or
admitted to unlisted trading privileges) on each such trading day upon which
such a sale shall have been effected (or if no sale takes place on any such day
on such exchange, the average of the closing bid and asked prices on such day as
officially quoted on such exchange), or (ii) if the Shares at the time are not
listed on either the New York Stock Exchange or any other national securities
exchange, the average of the highest reported bid and lowest reported asked
prices of the Shares in the over-the-counter market on each such trading day, as
reported by the National Association of Securities Dealers Automated Quotations
System ("NASDAQ") or similar organization if NASDAQ is no longer reporting such
information. In the event the Market Price of the Shares cannot be determined in
accordance with the immediately preceding sentence, the fair market price shall
be determined in good faith by the Board of Trustees (which determination shall
be reasonably satisfactory to the Holders holding at least 51% in aggregate
principal amount of the outstanding Securities).
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SECTION 7. DENOMINATIONS, TRANSFER, EXCHANGE.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 6 % Convertible Debentures due 7limited in aggregate
principal amount to 8 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.
SECTION 8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it for all
purposes.
SECTION 9. 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.
SECTION 10. NO DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
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(6) 8.54% in the case of the 8.54% Notes and 8.56% in the case of the 8.56%
Notes
(7) July 1, 2000 in the case of the 8.54% Notes and July 1, 2002 in the case
of the 8.56% Notes
(8) $43,334,000 in the case of the 8.54% Notes and $51,666,000 in the case of
the 8.56% Notes
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The Indenture may not be discharged or cancelled pursuant to Section
8.02 thereof so long as any Securities are outstanding.
SECTION 11. SUPPLEMENTAL INDENTURE.
Subject to certain exceptions, without notice to the Holders of the
Securities, 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 of any Holder.
SECTION 12. SUCCESSORS.
Upon satisfaction of the conditions provided in the Indenture, if a
successor to the Company assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
SECTION 13. 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.
SECTION 14. 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.
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SECTION 15. NO RECOURSE AGAINST OTHERS.
No shareholder, trustee, officer or incorporator, 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.
SECTION 16. AUTHENTICATION.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the reverse side of this Security.
SECTION 17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=Custodian), and U/G/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> 16
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> 17
CONVERSION NOTICE
To convert this Security into shares of beneficial interest of the
Company, check the box: / /
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
$
- -----------------------------
If you want the Security certificate, if any, made out in another person's name,
fill in the form below;
(INSERT OTHER PERSON'S SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
- -----------------------------
- -----------------------------
(Print or type assignee's name, address and zip code)
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> 18
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 any business,
or the exercise of any privilege, franchise or license;
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<PAGE> 19
(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 effect thereto and to any concurrent transactions,
exceed the greater of (i) 150% of Capital Base, or (ii) 225%
of Tangible Net Worth; and
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<PAGE> 20
(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 effect 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
owned to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the security interest lien arising
from a mortgage, encumbrance, pledge, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. The term
"Lien" shall include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases
and all other title exceptions
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<PAGE> 21
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 therefor;
"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 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.
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<PAGE> 22
(c) Optional Redemption by the Company; Payment upon
Acceleration. (i) The 8.54% Notes may not be prpepaid. Upon compliance
with paragraph (c)(ii) below, the Company shall have the privilege at
any time and from time to time, on or after, but not prior to July 1,
2001 of prepaying the outstanding 8.56% Notes, either in whole or in
part (but if in part then in a minimum principal amount of $1,000,000),
by payment of the principal amount of the 8.56% Notes, or the portion
thereof to be prepaid, together with accrued interest thereon to the
date of such prepayment, but without premium.
(ii) The Company will give written notice of any prepayment of
the 8.56% Notes pursuant to paragraph (c)(i) above to the Trustee and
each Holder thereof not less than 30 days nor more than 60 days before
the date fixed for such optional prepayment specifying (i) such date,
(ii) the principal amount of the Holder's Notes to be prepaid on such
date and the aggregate principal amount of all Notes to be prepaid on
such date and (iii) the accrued interest applicable to the prepayment.
Such notice of prepayment shall also certify all facts, if any, which
are conditions precedent to any such prepayment. Notice of prepayment
having been so given, the aggregate principal amount of the Notes
specified in such notice, together with accrued interest thereon,
payable with respect thereto shall become due and payable on the
prepayment date specified in said notice.
(iii) All partial prepayments of the 8.56% Notes pursuant to
paragraph (c)(i) above shall be applied on all outstanding 8.56% Notes
ratably in accordance with the unpaid principal amounts thereof.
(iv) 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" shall mean in connection with any
prepayment upon acceleration of the Securities the excess, if any, of
(i) the aggregate present value as of the date of the prepayment of
each dollar of principal being prepaid and the amount of interest
(exclusive of interest accrued to the date of prepayment) that would
have been payable in respect of such dollar if such prepayment had not
been made, determined by discounting such amounts at the Reinvestment
Rate from the respective dates on which they would have been payable,
over (ii) 100% of the principal amount of the outstanding Securities
being prepaid. In no event shall the Make-Whole Amount be less than
zero. For purposes of any determination of the Make-Whole Amount:
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<PAGE> 23
"Reinvestment Rate" shall mean .50% plus the yield to
maturity of the United States Treasury obligations with a
maturity (as compiled by and published on Telerate Page 5 or
its successor not more than five business days immediately
preceding the payment date) most nearly equal to the remaining
Life to Maturity of the Securities being prepaid. If such rate
shall not have been so published, the Reinvestment Rate in
respect of such payment date shall mean the mean of the yields
to maturity of United States Treasury obligations (as compiled
by and published in the United States Federal Reserve Bulletin
or its successor publication for each of the two weeks
immediately preceding the payment date) with a constant
maturity most nearly equal to the Life to Maturity of the
Securities being prepaid. If no maturity exactly corresponding
to the Life to Maturity of the Securities being prepaid,
yields for the next longer and the next shorter published
maturities shall be calculated as aforesaid and the
Reinvestment Rate shall be interpolated from such yields on a
straight-line basis (rounding to the nearest month). If such
rates shall not have been so published, the Reinvestment Rate
in respect of such determination date shall be calculated
pursuant to the next preceding sentence on the basis of the
arithmetic mean of the arithmetic means of the secondary
market ask rates, as of approximately 3:30 P.M., New York City
time, on the last business day of each of the two weeks
preceding the payment date, for the actively traded U.S.
Treasury security or securities with a maturity or maturities
most closely corresponding to the remaining Life to Maturity,
as reported by three primary United States Government
securities dealers in New York City of national standing
selected in good faith by the Company.
"Life to Maturity" of the principal amount of the
Securities being prepaid shall mean, as of the time of any
determination thereof, the number of years (calculated to the
nearest one-twelfth) which will elapse between the date of
determination and the scheduled maturity of the Securities
being prepaid.
The Make-Whole Amount shall be determined by the Trustee and
such determination shall be binding and conclusive absent manifest
error.
(d) Conversion. (i) A Holder of a Security may convert such
Security into shares of beneficial interest of the Company ("Shares")
at any time prior to redemption or maturity. The initial Conversion
Price is $32.625 per share, subject to adjustment in certain events. To
determine the number of Shares issuable upon conversion of a Security,
divide the principal amount to be converted by the Conversion Price in
effect on the conversion date. The Company will deliver a check for any
fractional Share.
(ii) To convert a Security, a Holder must (1) complete and
sign the conversion notice on the back of the Security, (2) surrender
the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if
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<PAGE> 24
required by the Registrar or Conversion Agent and (4) pay any transfer
or similar tax if required. No payment or adjustment is to be made on
conversion for dividends on shares of beneficial interest issued on
conversion. A Holder may convert a portion of a Security if the portion
is $1,000 principal amount or an integral multiple thereof.
(iii) No payment or adjustment shall be made upon any
conversion on account of any cash dividends declared for payment as of
a record date prior to the date of conversion on the Shares issued upon
conversion of a Security. Anything in the Indenture to the contrary
notwithstanding, subject to the credit described in paragraph (iv)
below, the Company shall pay all interest on the Securities or the
portion thereof surrendered for conversion accrued to the date when the
conversion notice shall have been received by the Conversion Agent.
Such interest shall be paid promptly but in no event more than 5
Business Days after the conversion notice shall have been received by
the Conversion Agent. In the case of any Security which is converted in
part only, the Company shall, upon such conversion, execute and deliver
to the Holder thereof, at the expense of the Company, a new Security in
principal amount equal to the unconverted portion of the Security
surrendered (dated as of the last date to which interest has been paid
thereon) and otherwise of like tenor therewith.
(iv) The Company shall be entitled to deduct from the accrued
interest payable to the Holder on any Security tendered for conversion
an amount equal to the aggregate Dividend Credit attributable to the
Shares issued to such Holder upon conversion; provided that the amount
of the Dividend Credit which is credited against accrued interest
payable on the Securities tendered for conversion hereunder shall not
exceed the accrued interest payable on such Securities. The Dividend
Credit per Share for any period shall be the regular dividend per Share
declared by the Board of Trustees of the Company on the dividend
declaration date immediately preceding the date of receipt of the
conversion notice (adjusted upwards or downwards to reflect the average
historical increase or decrease in the amount of such dividends over
the preceding four quarterly dividend periods) divided by the number of
days in the dividend period in respect of which such dividend was
declared multiplied by the number of days in the Dividend Credit
Period. The number of days in the Dividend Credit Period shall equal
the number of days which have elapsed since the record date for payment
of dividends on Shares immediately preceding the date of receipt of the
applicable conversion notice to, but not including, the date on which
the applicable conversion notice has been received. In the event that
the dividend declared and paid by the Company on the next regularly
scheduled dividend payment date applicable to the Shares issued
pursuant to a conversion notice shall be less than the dividend used in
calculating the Dividend Credit, the Company shall pay to the Holder an
additional amount equal to the difference between the amount which
would have been paid if the Dividend Credit had been calculated on the
dividend actually paid rather than the amount assumed for purposes of
the determination of the Dividend Credit.
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<PAGE> 25
(v) In the case of any consolidation or merger of the Company
with another entity or any reorganization or reclassification of the
Shares or other equity securities of the Company (except a split-up,
combination or reclassification, provision for which is made in the
Indenture), then, as a condition of such consolidation, merger,
reorganization or reclassification, lawful and adequate provision shall
be made whereby the Holders shall thereafter have the right to receive
upon the basis and upon the terms and conditions specified herein and
in lieu of the Shares immediately theretofore receivable upon
conversion of their Securities, such shares of stock, securities,
assets or cash as may (by virtue of such consolidation, merger,
reorganization or reclassification) be issued or payable with respect
to or in exchange for a number of outstanding Shares equal to the
number of Shares immediately theretofore so receivable hereunder had
such consolidation, merger, reorganization or reclassification not
taken place, and in any such case appropriate provisions shall be made
with respect to the rights and interests of the Holders to the end that
the provisions of this paragraph (v) (including, without limitation,
provisions for adjustment of the per share Conversion Price) shall
thereafter be applicable as nearly as may be, in relation to any shares
of stock, securities, assets or cash thereafter deliverable upon
conversion of such Securities.
In the case of (i) any merger or consolidation in which the
Shares shall be exchanged for any consideration other than common stock
(or its equivalent) of the surviving entity, or (ii) the sale of all or
substantially all of the assets of the Company to another entity, the
"Fair Market Value" per Share of such consideration shall be determined
as of the effective date of such merger or consolidation or sale of
assets, as the case maybe. Upon the written request of any Holder
delivered as hereinafter provided, in lieu of the cash and other
consideration per Share to be received by the holders of Shares, the
Conversion Price per Share shall be adjusted so that such Holder shall
have the right to receive the number of shares of common stock (or its
equivalent) of the surviving entity (based on the Fair Market Value of
such common stock on the effective date of such acquisition) so that
the Holder will be in the same relative economic position with respect
to the common stock (or its equivalent) of the surviving entity as such
Holder would have been in if all of the outstanding Shares had been
exchanged exclusively for common stock (or its equivalent) of the
surviving entity. Notice of any election by a Holder pursuant to this
paragraph (v) shall be made by such Holder not more than 15 Business
Days after delivery of notice of the event giving rise to such
election. The Company shall not effect any such consolidation, merger
or sale, unless prior to or simultaneously with the consummation
thereof, the successor entity (if other than the Company) resulting
from such consolidation or merger or the entity purchasing such assets
shall assume by written instrument executed and mailed or delivered to
each Holder, the obligation to deliver to such Holder such shares of
stock, securities, assets or cash as, in accordance with the foregoing
provisions, such Holder may be entitled to receive. Nothing contained
in this paragraph (v) or in Section (d) generally shall permit a
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<PAGE> 26
merger or consolidation or sale of assets otherwise prohibited by the
provisions of the Indenture.
(vi) Notwithstanding the foregoing, a Holder may not convert
any Security, and such Security shall not be convertible by any Holder,
if as a result of such conversion any Person would then be deemed to
own Shares in excess of the limits prescribed in Article VI, Section
6.15 of the Restated Declaration of Trust, as amended, of the Company.
The Company will furnish a copy of said Section 6.15 and of other
applicable provisions of its Declaration of Trust relating to certain
restrictions on transfer of its Shares and on Company rights to redeem
Shares to any Holder upon request and without charge.
(vii) If the Market Price for Shares for any period of 30
consecutive trading days (the "Computation Period") shall equal or
exceed 130% of the average of the Conversion Price per Share on each
day of such Computation Period, the Company may, at its election, give
written notice to each Holder that the Securities (or such portion
thereof as shall be specified by the Company) will be converted into
Shares on the date (the "Mandatory Conversion Date") set forth in such
notice (the "Company Conversion Notice"). The conversion right set
forth in this paragraph (vii) may be exercised by the Company from time
to time with respect to less than all of the Securities then
outstanding but the aggregate principal amount of Securities to be
converted pursuant to each Company Conversion Notice shall be not less
than $5,000,000 and shall be allocated pro rata over all Securities
then outstanding based on the principal amount of such Securities held
by each Holder. The Company Conversion Notice shall be given within 10
Business Days following the expiration of the applicable Computation
Period. The Mandatory Conversion Date shall be not less than 20 nor
more than 30 days after the date of the Company Conversion Notice. The
Company Conversion Notice shall (i) refer to this paragraph (vii), (ii)
set forth the Market Price for the Shares on each day of the
Computation Period, (iii) set forth the Market Price of the Shares as
of the date immediately preceding the date of the Company Conversion
Notice, (iv) set forth the principal amount of the Holder's Securities
to be converted on such date and the aggregate principal amount of all
Securities to be converted on such date, and (v) set forth the accrued
interest to be paid by the Company on the Mandatory Conversion Date. At
any time following receipt of the Company Conversion Notice and prior
to the Mandatory Conversion Date, each Holder may exercise its
conversion rights in accordance with the provisions of this Section
(d). On the Mandatory Conversion Date (i) the principal amount of the
Securities to be converted shall be deemed tendered for conversion into
Shares at the applicable Conversion Price per Share, and (ii) anything
in the Indenture to the contrary notwithstanding, the Company shall pay
all interest which shall have accrued on the principal amount of the
Securities then converted from the last interest payment date to, but
not including, the Mandatory Conversion Date; provided that if the
Market Price for Shares shall be less than the Conversion Price per
Share on the last trading day immediately preceding the Mandatory
Conversion Date, the
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<PAGE> 27
mandatory conversion shall not be effected and no conversion of the
Securities shall occur. All Shares delivered on a Mandatory Conversion
Date shall be freely transferable by the Holder of such Shares without
compliance with the prospectus delivery requirements of the Securities
Act. The Company Conversion Notice given to each Holder pursuant to
this paragraph (vii), shall be sent by both facsimile communication and
overnight courier service.
The Market Price for Shares for each day of such thirty
trading day period shall be determined as follows: (i) if the Shares
shall at the time be listed or admitted to unlisted trading privileges
on the New York Stock Exchange, on the basis of the last reported sale
price regular way of the Shares on the composite tape (or if the Shares
at the time are not so listed or admitted to unlisted trading
privileges on the New York Stock Exchange but are listed or admitted to
unlisted trading privileges on another national securities exchange, on
the basis of the last reported sale price regular way on such national
securities exchange on which the Shares are at the time listed or
admitted to unlisted trading privileges) on each such trading day upon
which such a sale shall have been effected (or if no sale takes place
on any such day on such exchange, the average of the closing bid and
asked prices on such day as officially quoted on such exchange), or
(ii) if the Shares at the time are not listed on either the New York
Stock Exchange or any other national securities exchange, the average
of the highest reported bid and lowest reported asked prices of the
Shares in the over-the-counter market on each such trading day, as
reported by the National Association of Securities Dealers Automated
Quotations System ("NASDAQ") or similar organization if NASDAQ is no
longer reporting such information. In the event the Market Price of the
Shares cannot be determined in accordance with the immediately
preceding sentence, the fair market price shall be determined in good
faith by the Board of Trustees (which determination shall be reasonably
satisfactory to the Holders holding at least 51% in aggregate principal
amount of the outstanding Notes).
ARTICLE THREE
MISCELLANEOUS
The Indenture, except as amended herein, is in all respects ratified
and confirmed and this Second 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 Second Supplemental Indenture, but not defined
herein, shall have the meanings assigned thereto in the Indenture.
THIS SECOND 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.
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<PAGE> 28
This Second 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.
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<PAGE> 29
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, as of the day and year first above
written.
MEDITRUST
By
Name:
Title:
FLEET NATIONAL BANK, AS TRUSTEE
By
Name:
Title:
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