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): December 5, 1997
HEALTH AND RETIREMENT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
Maryland 1-9317 04-6558834
(State or other (Commission (IRS Employer
jurisdiction of ) File Number) Identification No.)
incorporation)
400 Centre Street, Newton, MA 02158
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 617-332-3990
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Item 2. Acquisition or Disposition of Assets
On December 5, 1997, Health and Retirement Properties Trust and
Subsidiaries (the "Company") purchased Bridgepoint Square an office complex
containing five commercial office properties with approximately 441,145 square
foot located in Austin, Texas from Investors Life Insurance Company of North
America and Family Life Insurance Company for $78 million plus closing costs in
a negotiated arms-length transaction. The properties have been and will continue
to be rented as commercial office space.
Property agent and management services, for this property are currently
provided by the seller, an unaffiliated third party. The management contract is
cancelable upon 30 days written notice. Management fees are based on a
percentage of revenue derived from this property. The Company plans to retain
the current property manager under a transitional period. Subsequent to the
transitional period, the property will be managed by M&P Partners Limited
Partnership ("M&P"), which provides property agent and management services for
certain of the Company's multi-tenant buildings. M&P is owned by its general
partner, HRPT Advisors, Inc., the Company's advisor, and Messrs. Gerard M.
Martin and Barry M. Portnoy, who are managing trustees of the Company.
Management fees paid to M&P are based on a percentage of revenue derived from
the multi-tenant buildings under its management.
The consideration for the acquisition was funded initially by drawing
under the Company's existing revolving line of credit with Dresdner Kleinwort
Benson North America LLC, as agent, and Fleet National Bank, as administrative
agent, and available cash.
Item 5. Other Information
On December 15, 1997, the Company completed a private placement of $150
million of 6 3/4% Senior Notes due 2002. The net proceeds of the placement were
used to reduce outstanding borrowings under the Company's revolving line of
credit which were at a floating interest rate.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements Under Rule 3-14 of Regulation S-X
The audited statement of gross income and certain expenses of the
property described in Item 2 of this Report is not filed herein but
will be filed as an amendment to this Form 8-K within 60 days of the
date hereof.
(c) Exhibits
2.1 Purchase and Sale Agreement dated November 24, 1997 by and
between Investors Life Insurance Company of North America and
Family Life Insurance Company, as seller and the Company, as
purchaser.
4.1 Indenture dated as of December 18, 1997 by and between the
Company and State Street Bank and Trust Company, as Trustee.
4.2 Supplemental Indenture dated as of December 18, 1997 by and
between the Company and State Street Bank and Trust Company,
as Trustee relating to the Company's 6 3/4% Senior Notes due
2002.
4.3 Registration Rights Agreement dated as of December 18, 1997 by
and between the Company and Merrill Lynch & Co.
99.1 Press Release of the Company dated December 18, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has dully caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Ajay Saini
Ajay Saini, Treasurer and Chief
Financial Officer
Date: December 19, 1997
Exhibit 2.1
PURCHASE AND SALE AGREEMENT
FOR BRIDGEPOINT SQUARE, AUSTIN, TEXAS
BETWEEN
HEALTH AND RETIREMENT PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST
AS BUYER
AND
INVESTORS LIFE INSURANCE COMPANY
OF NORTH AMERICA
AND
FAMILY LIFE INSURANCE COMPANY
AS SELLERS
AS OF NOVEMBER 19, 1997
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EXHIBITS
Exhibit A Land
Exhibit B-1 Special Warranty Deed of Investors Life Insurance Company
of North America
Exhibit B-2 Special Warranty Deed of Family Life Insurance Company
Exhibit C-1 Special Warranty Bill of Sale of Investors Life Insurance
Company of North America
Exhibit C-2 Special Warranty Bill of Sale of Family Life Insurance Company
Exhibit D-1 Assignment and Assumption of Leases of Investors Life Insurance
Company of North America
Exhibit D-2 Assignment and Assumption of Leases of Family Life Insurance
Company
Exhibit E Copy of Confidentiality Agreement - Principal
Exhibit F Form of Notice Letter sent to Tenants of
Investors Life Insurance Company of North America
Exhibit F Form of Notice Letter sent to Tenants of Family Life Insurance
Company
Exhibit G Assignment and Assumption of Warranties and Guaranties of
Investors Life Insurance Company of North America
Exhibit G Assignment and Assumption of Warranties and Guaranties of
Family Life Insurance Company
Exhibit H Surveyors Certificate
Schedule 11(b) Personal Property
Schedule 33 Lease Commissions and Unfunded Tenant Improvements
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as
of November 19, 1997 ("Effective Date"), by and between HEALTH AND RETIREMENT
PROPERTIES TRUST, a Maryland real estate investment trust ("Buyer") and
INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Washington corporation
("Investors") and FAMILY LIFE INSURANCE COMPANY, a Washington corporation
("Family Life") (Investors and Family Life are hereinafter referred to jointly
as "Seller" or "Sellers").
RECITALS
Sellers are the owners of Bridgepoint Square, a multiple office
building project ("Project") located at 6300 Bridgepoint Parkway, Austin, Travis
County, Texas 78730 on adjoining tracts of land legally described as Lot One
(1), HIDDEN VALLEY, PHASE B, a subdivision in Travis County, Texas ("Lot 1,
Phase B") and Lot Two (2), HIDDEN VALLEY, PHASE A, a subdivision in Travis
County, Texas ("Lot 2, Phase A").
The Project is composed of five office buildings and three parking
garage structures. Bridgepoint One, Bridgepoint Two, Bridgepoint Three,
Bridgepoint Four and two parking garage structures are located on Lot 1, Phase
B, and are owned by Investors. Bridgepoint Five and one parking garage structure
are located on Lot 2, Phase A, and are owned by Family Life.
Investors and Family Life are affiliated companies.
Sellers desire to sell and Buyer desires to purchase the Property upon
the terms and conditions hereinafter set forth.
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Buyer and Sellers hereby
covenant and agree as follows:
1. Conveyance of Property
1.1 On the terms and subject to the conditions set forth in this
Agreement, Sellers will sell, convey and assign to Buyer, and Buyer will buy and
accept from Sellers, all of the following ("Property"):
1.1(a) the land in Austin, Texas, being more specifically
described in the legal description on Exhibit A (the
"Land"), together with all rights and interests
appurtenant thereto, including without limitation,
all (i) adjacent streets, alleys, rights-of-way and
any adjacent strips or gores of real estate; (ii)
buildings, structures and other improvements,
fixtures and landscaping located on the Land (the
"Improvements"); and (iii) rights, titles and
interests appurtenant to the Land and Improvements,
including
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without limitation, all easements benefiting the Land
and all reversionary interests in the Land and the
Improvements (the "Appurtenances");
1.1(b) equipment and other tangible personal property
located on and used in connection and associated with
the ownership, maintenance, management and operation
of the Land and Improvements and owned by Sellers
including without limitation those described in
Schedule 1.1(b) attached hereto and made a part
hereof for all purposes, excluding, however, the
Chevrolet Silverado Crew Cab (Dually) one ton pick-up
truck sometimes located on the Land and such other
excluded items as set forth on Schedule 1.1(b) (the
"Personal Property");
1.1(c) any and all of Sellers' right, title and interest in
and to (i) plans, and specifications (the "Plans),
(ii) warranties and guaranties (the "Warranties"),
(iii) licenses, permits and governmental approvals
(the "Licenses") and (iv) the right to enforce any of
the foregoing; and
1.1(d) all right, title interest of Sellers in and to those
lease agreements and any amendments thereto,
affecting or relating to the Land and Improvements
(the "Leases") and to any security deposits held by
Sellers at the Closing.
1.2 All of the Property will be transferred to Buyer at Closing (as
hereinafter defined) free and clear of all liens, claims and encumbrances except
for the Permitted Encumbrances (as hereinafter defined).
1.3 Though Family Life has substantially completed Bridgepoint Five and
has received a temporary occupancy certificate ("TCO") from the City of Austin
for Bridgepoint Five, there are various punch list items and other improvement
that remain incomplete, including, but not limited to, installation of the
marble in the lobby of Bridgepoint Five which has been special ordered and will
not arrive until January, 1998. In addition, though Bridgepoint Two has been
finally completed, the final certificate of occupancy for Bridgepoint Two has
not been received from the City of Austin. As part of the consideration for the
purchase and sale of the Property, Sellers agree to complete construction of
Bridgepoint Five in accordance with the construction contract between Family
Life and Constructors, Inc. and in accordance with the requirements of the Lease
between Family Life, as Landlord, and International Business Machines
Corporation ("IBM"), as Tenant (the "BP Five Lease") (which BP Five Lease has
been assigned by IBM to Tivoli Systems Subsidiary, Inc.) and agrees to fully
complete Bridgepoint Five, pay all amounts properly due to Constructors, Inc.
under the Bridgepoint Five construction contract and obtain a final certificate
of occupancy for Bridgepoint Two and Bridgepoint Five from the City of Austin.
In connection therewith, to the extent Sellers need to retain rights to the
Plans, Warranties, or Licenses to complete such construction, Buyer acknowledges
that Sellers shall retain such rights at Closing, and will complete the
assignment of such rights as soon as the construction has been completed, all
warranties have been issued by the contractors, and all certificates of
occupancy for Bridgepoint Two and Bridgepoint Five have been issued.
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Sellers and Buyer agree to cooperate with each other in order to accomplish the
foregoing. This provision shall survive Closing.
2. Earnest Money. Upon the execution of this Agreement, Buyer will deposit with
Heritage Title Company of Austin, Inc., 301 Congress Avenue, Suite 450, Austin,
Travis County, Texas Attention: Jan Dwyer (the "Title Company"), as escrow
agent, a total of Seven Million and No/100 Dollars ($7,000,000.00) in
immediately available funds in consideration for this Agreement and the
Inspection Period (defined below) (the "Earnest Money"). The Earnest Money shall
be held by the Title Company in an interest bearing account. All interest earned
on the Earnest Money shall be credited to Buyer at Closing.
3. Purchase Price
3.1 The purchase price for the Property will be Seventy-eight Million
and No/100 Dollars ($78,000,000.00) (the "Purchase Price"), to be paid in
immediately available funds at Closing, subject to the adjustments described in
this Agreement.
3.2 All rents ("Rents"), real and personal property taxes, owners
association assessments, utility charges and all other expenses related to the
ownership and operation of the Property will be prorated as of 12:01 a.m. on the
Closing Date. All rents for the month of Closing, regardless of whether same
have been collected prior to Closing, will be prorated at the Closing. Final
meter readings will be made as of the Closing Date, and Sellers will arrange for
and pay for final billings through the Closing Date. Buyer will pay Sellers at
Closing for any deposits held by the providers of such utilities to the extent
such deposits will be refundable to Buyer. Sellers will have the right to use
commercially reasonable means in pursuing collection from Southwestern Bell
Yellow Pages for delinquent common area maintenance charges and expenses for
1995 and 1996, and to collect the Additional Tenant Improvement Allowances (as
defined in the respective leases) from Silicon Graphics, Inc. (recently billed,
but not yet paid) and International Business Machines Incorporated (and its
subsidiary Tivoli Systems Subsidiary, Inc.) (final amount not yet determined or
billed), including filing lawsuits to obtain money judgments against any such
tenants to recover same; provided, however, Sellers shall not have the right to
seek any equitable remedies to evict such tenants or otherwise terminate any of
the Leases. Sellers agree to keep Buyer reasonably apprised of any collection
efforts made, or litigation filed, by Sellers to collect any delinquent rents,
including copying Buyer on all correspondence and pleadings. At any time, Buyer
shall have the right to purchase any of the aforesaid receivables for the face
amount of such receivable, or such lesser amount as is acceptable to Seller, if
any.
3.3 Attached hereto as Schedule 3.3 is a schedule titled "Lease
Commissions and Unfunded Tenant Improvements", which schedule sets forth the
current status of various Leases, including certain obligations for commissions
and tenant improvements to be allocated between Sellers and Buyer as set forth
therein. The items set forth on Schedule 3.3 shall either constitute adjustments
to the Purchase Price or be real property apportionments as contemplated by
Section 9 of this Agreement.
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3.4 Sellers hereby disclose to Buyer, and Buyer hereby acknowledges
that Sellers have deposited $73,000.00 with the City of Austin to secure Sellers
obligation to complete the landscaping requirements as set forth in the approved
site plan and building permit for the Property. Buyer hereby acknowledges that
Sellers retain all rights to such deposit, and upon completion of the
landscaping requirements and agreement of the City of Austin to release such
fiscal deposit, such deposit shall be returned to Sellers.
4. Delivery of Documents by Sellers
4.1 Sellers have previously delivered to Buyer a commitment for title
insurance ("Commitment") issued by Heritage Title Company of Austin, Inc., as
agent for Chicago Title Insurance Company, insuring the Property for the
Purchase Price and showing the Buyer as proposed insured, together with copies
of all documents referenced as exceptions in the Commitment.
4.2 Sellers have previously provided or made available to Buyer, or to
the extent not previously provided or made available to Buyer, will, within one
(1) business day following the Effective Date (the "Document Date"), make
available at the Property the following documents and information:
4.2(a) operating statements, including income and expense
statements, in the possession of Sellers with respect
to the operation of the Property for calendar years
1995 and 1996 and January 1, 1997 through October 31,
1997;
4.2(b) a current rent roll ("Rent Roll") as of November 1,
1997, listing the tenants in the Improvements, their
respective locations, approximate square footage
leased, annual rent, security deposits, if any, lease
date, fixed rent and additional rent, unfunded tenant
improvement allowances, if any, and unpaid
commissions, if any, as well as any unleased space in
the Improvements, if any;
4.2(c) a schedule listing the Personal Property that will be
transferred to Buyer and will not be owned by Sellers
after Closing;
4.2(d) copies of all property tax statements for 1997;
4.2(e) copies of all utility bills for the Property for the
years 1996 and 1997 year to date;
4.2(f) copies of all current service and vendor contracts
("Contracts") relating to the Property and all
warranty agreements, if any, in the possession of
Sellers;
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4.2(g) copies of any environmental reports pertaining to the
Property prepared on behalf of Sellers or otherwise
in the possession of Sellers, if any;
4.2(h) a list of all major Warranties, including roof and
HVAC warranties, and the warranties related to the
construction of Improvements;
4.2(i) UCC 11 search from the Secretary of State of Texas
and the County Clerk of Travis County, Texas.
4.2(j) estoppel certificates ("Estoppel Certificates") from
the existing tenants of the Property, issued to
Starwood Opportunity Fund IV, L.P.
("Starwood"), in Seller's possession.
4.3 As soon as reasonably possible, Sellers will provide to Buyer
Estoppel Certificates from Tivoli Systems Subsidiary, Inc., Tandem Computers,
Inc., Amherst Securities, Inc. and Texas A&M University in substantially the
same form as the Estoppel Certificates described in Section 4.2(j). In addition,
Sellers will make commercially reasonable efforts to obtain current letters from
the existing tenants confirming that there have been no material changes in such
Estoppel Certificates previously delivered to Sellers. Sellers also agree to
obtain an assignment from Starwood, assigning all of Starwood's right, title and
interest in and to the Estoppel Certificates issued to Starwood.
4.4 Within one (1) day following the Effective Date, Sellers will
deliver to Buyer four (4) copies of a current ALTA survey ("Survey") of the
Property prepared by Tommy P. Watkins, Registered Professional Land Surveyor No.
4549, with the firm of Cunningham-Allen, Inc., together with a certification in
the form attached as Exhibit H.
4.5 Buyer's obligation to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction of the following conditions
precedent:
4.5(a) No notice of default shall have been given or
received by Sellers under any material agreement
benefitting or affecting the Property in any respect
or under the Leases and all such agreements and the
Leases shall be in full force and effect (Sellers
agreeing to issue default notices in a commercially
reasonable manner consistent with past practices);
and
(b) All material licenses, permits and other
authorizations reasonably necessary for the current
use, occupancy and operation of the Property shall be
in full force and effect; provided, however, Buyer
acknowledges and agrees that at Closing, Seller will
not have obtained a final certificate of occupancy
from the City of Austin for Bridgepoint Two or
Bridgepoint Five, but will have a TCO from the City
of Austin for Bridgepoint Two and Bridgepoint Five
and a certificate from Sellers' architect that
Bridgepoint Two and Bridgepoint Five have been
substantially completed in accordance with the plans
and specifications.
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5. Right of Entry, Inspection, Termination
5.1 Buyer, at Buyer's sole cost and expense, will have until 12:00 p.m.
Austin, Texas time, on December 5, 1997 (the "Inspection Period") in which to
conduct investigations and inspections of the Property to determine if the
Property is acceptable to Buyer, in Buyer's sole and absolute discretion. During
the Inspection Period, Buyer will obtain such investigation and inspection
reports related to the Property as Buyer deems necessary ("Buyer's Investigation
Reports"). Sellers agree that during the Inspection Period, Buyer and its agents
and representatives will be entitled to enter upon the Property, upon
twenty-four (24) hour's prior telephonic notice to Sellers, or such shorter time
period as is verbally agreed to by Sellers, to conduct Buyer's investigation and
inspection of the Property and to prepare Buyer's Investigation Reports. Buyer
agrees to (a) promptly repair any physical damage to the Property caused by
Buyer, (b) to indemnify, defend and hold Sellers harmless for any damages to the
Property, any personal injury suffered by any person, or any other loss, injury,
liability, claim or damage arising or resulting from Buyer's inspection of the
Property, or otherwise caused by Buyer or Buyer's agents and representatives
during its inspection of the Property, (c) exercise all reasonable efforts to
not interfere with any activities of any tenant of the Property, and (d) if
Buyer terminates this Agreement prior to the expiration of the Inspection
Period, return to Sellers the Commitment, the Survey and all reports, documents
and due diligence information delivered by Seller to Buyer within five (5) days
from such termination. Notwithstanding anything contained in this Agreement to
the contrary, the foregoing indemnity and obligations of Buyer will survive the
Closing of the transaction contemplated hereby or the termination of this
Agreement.
5.2 If prior to the expiration of the Inspection Period, Buyer, in
Buyer's sole and absolute discretion, determines that the Property is not
acceptable to Buyer, then Buyer will be entitled to terminate this Agreement by
giving written notice thereof to Sellers prior to the expiration of the
Inspection Period (the "Termination Notice"), and in such event (i) this
Agreement will automatically terminate, (ii) upon Buyer's completion of Buyer's
Termination Obligations (as hereinafter defined), the Earnest Money shall be
refunded to Buyer, except for $100.00 which shall be paid to Sellers as
independent consideration for this Agreement, and (iii) the parties will have no
further rights or obligations under this Agreement.
5.3 If Buyer does not timely give Sellers a Termination Notice prior to
the expiration of the Inspection Period, (i) Buyer will be deemed to be
satisfied with the Property in all respects, (ii) Buyer will have no further
right to terminate this Agreement pursuant to this Section 5, and (iii) the
Earnest Money will become non-refundable, except for the failure of Sellers to
close the sale of the Property in accordance with the terms of this Agreement.
5.4 If Buyer gives Sellers a Termination Notice prior to the expiration
of the Inspection Period, or subsequently fails to close the purchase of the
Property, then Buyer will comply with the following ("Buyer's Termination
Obligations"): (i) repair any damage to the
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Property caused by Buyer's investigation and inspection of the Property, (ii)
return to Sellers all Title Commitments, Surveys, reports or other documents
delivered by Sellers to Buyer, and (iii) represent to Seller that it has
destroyed all other documents included in Buyer's investigation of the Property.
Notwithstanding anything contained in this Agreement to the contrary, the
agreements and indemnities set forth in this Section will survive the
termination of this Agreement, and Sellers will have the right to enforce
Buyer's Termination Obligations under this Section by specific performance.
5.5 Buyer agrees to maintain strict confidentiality with respect to all
documents and information provided by Sellers to Buyer, and to allow only
limited access to such documents and information only to Buyer's attorneys and
other professional agents who are assisting with the investigation and
inspection of the Property. If Buyer does not close the purchase of the Property
for any reason, Buyer will repair any damage to the Property caused by Buyer's
inspection of the Property, and will deliver to Sellers all the documents and
information provided to Buyer by Sellers (and all copies thereof made by Buyer).
Buyer will indemnify and hold Sellers harmless from and against any loss, claim
or liability (including, without limitation, court costs and reasonable
attorneys' fees, arising or resulting from the inspections made by Buyer or
Buyer's agents pursuant to this Section 5. The provisions of this Section 5.5
will survive Closing or a termination of this Agreement.
5.6 During the term of this Agreement, and as a condition to Buyer or
any of its agents, representatives or consultants entering the Property, Buyer
shall, or shall cause its agents and employees to, obtain and maintain
commercially reasonable insurance.
6. Title and Survey. Until December 3, 1997, Buyer will have the right to object
in writing to any matters reflected by the Survey or the Title Commitment;
provided, however, Buyer shall make all commercially reasonable efforts to
advise Seller as soon as possible of any objections Buyer has to the Survey or
the Title Commitment. All matters to which Buyer so objects are hereby referred
to as "Non-Permitted Encumbrances." All matters reflected by the Survey and the
Title Commitment to which such objection is not made, or any Non-Permitted
Encumbrances which are subsequently waived by Buyer, will be deemed "Permitted
Encumbrances." All liens of any kind (except the lien for current ad valorem
taxes not yet due and payable) will be Non- Permitted Encumbrances, whether or
not Buyer objects to them. Sellers, at their sole cost and expense, will have
the right, but not the obligation, to cure or remove all Non-Permitted
Encumbrances prior to Closing. Sellers, at their sole cost, will be obligated to
cure, remove or bond around, at or before closing, all mortgages, liens and
judgments (except the lien for current ad valorem taxes not yet due and payable)
against the Property. If Seller is unable or unwilling to cure any Non-Permitted
Encumbrance prior to Closing, Buyer, as its sole and exclusive remedies, shall
either (i) terminate this Agreement and receive an immediate refund of the
Earnest Money and in such event this Agreement shall be null and void and the
parties shall have no further obligation or liability hereunder, except for
Buyer's Termination Obligations, or (ii) waive such objection and such
Non-Permitted Encumbrance shall become a Permitted Encumbrance and Buyer shall
proceed to Closing. Seller and Buyer acknowledge and agree that the Closing Date
shall not be extended for the purposes of curing any of Buyer's objections to
the Survey or the Title Commitment.
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7. Representations and Warranties; Disclaimer
7.1 Sellers hereby represent and warrant to Buyer that:
7.1(a) Sellers have the full right, power, and authority to
execute, deliver and perform this Agreement without
obtaining any consent or approval from any third
party, and this Agreement constitutes the valid and
binding agreement of Sellers, enforceable against
Sellers in accordance with its terms.
7.1(b) The Property is not subject to any outstanding
agreement(s) of sale, option(s) or other right(s) of
third parties to acquire any interest therein, other
than as tenants pursuant to the Leases. During the
term of this Agreement, Sellers will not offer the
Property for sale or in any way materially adversely
affect the condition of the title of the Property
without the prior written approval of the Buyer.
7.1(c) There are no leases affecting the Property, oral or
written, except the Leases delivered to Buyer
pursuant to Section 3 hereof. All tenant improvements
and lease commissions associated with the existing
Leases are paid or will be paid by the Closing Date,
or adequate provision shall be made therefore at
Closing.
7.1(d) Sellers have delivered to Buyer true, correct and
complete copies of the Leases, with all amendments
thereto which have been executed as of the date of
this Agreement. The Rent Roll delivered by Sellers to
Buyer are true, correct and complete in all material
respects.
7.1(e) There are no actions, suits, arbitrations, claims or
proceedings pending that (i) could materially
adversely affect the ownership or operation of the
Property or Sellers' ability to perform hereunder, or
(ii) would or could alter or be binding on Buyer
and/or the Property following Closing.
7.1(f) Sellers have received no written notice of taking,
condemnation, betterment or assessment, actual or
proposed, with respect to the Property, and none has
occurred.
7.1(g) Neither of the Sellers has received written notice of
and, to Sellers' current actual knowledge, without
inquiry, no action or proceeding is pending or
threatened and no investigation looking toward such
an action or proceeding has begun, which questions
the validity of this Agreement or any action taken or
to be taken pursuant hereto, will result in any
material adverse change in the business, operation,
affairs or condition
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of the Property, result in or subject the Property to
a material liability, or involves condemnation or
eminent domain proceedings against any part of the
Property.
7.1(h) Other than the Leases listed in the Rent Roll,
neither of the Sellers has entered into any contract
or agreement with respect to the occupancy of the
Property which will be binding on Buyer after the
Closing. The copies of the Leases heretofore
delivered by Sellers to Buyer are true, correct and
complete copies thereof; the Leases have not been
amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between
Sellers and the tenants thereunder. Except as
otherwise set forth in the Leases, the Rent Roll, the
Estoppel Certificates, and in Schedule 3.3, to
Sellers' current actual knowledge, without inquiry;
(i) each of the Leases is in full force and effect on
the terms set forth therein, and Sellers have not
waived any obligation of any Tenant to pay rent or
perform material obligations set forth in the Leases;
(ii) no Tenant has asserted in writing or, has made
any other assertion of any defense to, offsets or
claims against, rent payable by it or the performance
of its other obligations under its Lease; (iii)
Sellers have no outstanding obligation to provide any
Tenant with an allowance to construct, or to
construct at its own expense, any tenant
improvements; (iv) no Tenant is in arrears in the
payment of any sums or in the performance of any
material obligation required of it under its Lease
beyond any applicable grace period, and no Tenant has
prepaid any rent or other charges (except as
disclosed in the Rent Roll); (v) no Tenant has filed
a petition in bankruptcy or for the approval of a
plan of reorganization or management under the
Federal Bankruptcy Code or under any other similar
state law, or made an admission in writing as to the
relief therein provided, or otherwise become the
subject of any proceeding under any federal or state
bankruptcy or insolvency law, or has admitted in
writing its inability to pay its debts as they become
due or made an assignment for the benefit of
creditors, or has petitioned for the appointment of
or has had appointed a receiver, trustee or custodian
for any of its property; (vi) no Tenant has requested
in writing a modification of its Lease, or a release
of its obligations under its Lease in any material
respect or has given written notice terminating its
Lease, or has been released of its obligations
thereunder in any material respect prior to the
normal expiration of the term thereof; (vii) except
as set forth in the Leases, no jr guarantor has been
released or discharged, voluntarily or involuntarily
or by operation of law, from any obligation under or
in connection with any Lease or any transaction
related thereto; (viii) all security deposits paid by
Tenants, are as set forth in the Rent Roll; (ix) all
tenant finish and lease commissions due with respect
to each of the Leases has been paid, except as
otherwise set forth on the Rent Roll or
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Schedule 3.3; and (x) the other information set forth
in the Rent Roll is true, correct and complete in all
material respects.
7.1(i) Other than the Leases and the Contracts, neither of
the Sellers has entered into any contract or
agreement with respect to the Property which will be
binding on Buyer after the Closing.
7.1(j) Sellers have not received written notice of any
threatened request, application, proceeding, plan or
study which would materially adversely affect the
present use or zoning of any of the Property or which
would modify or realign any adjacent street or
highway.
7.1(k) Except as set forth in the Environmental Site
Assessment prepared by HBC Engineering, Inc. for
Starwood Capital Group, L.P. dated September 16, 1997
(the "Environmental Report"), a copy of which has
been provided by Sellers to Buyer, to Sellers'
current actual knowledge, which knowledge is based
solely on the Environmental Report, there are no
hazardous waste, contaminants, oil, radioactive or
other material on the Property, or any portion
thereof, in violation of any applicable Federal,
state or local statutes, laws, ordinances, rules or
regulations, except any such materials maintained in
accordance with applicable law.
7.1(l) Neither of the Sellers is a "foreign person" within
the meaning of Section 1445 of the United States
Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Buyer expressly acknowledges and agrees that all of the representations and
warranties made by Sellers in Section 7.1, and all subsections thereof, are
expressly limited as set forth therein. Except as otherwise specifically
provided, the representations and warranties made by Sellers in this Section 7.1
shall survive the Closing for a period of six (6) months from the Closing.
7.2 DISCLAIMER OF WARRANTIES; AS IS PURCHASE. EXCEPT FOR THE SPECIFIC
WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 7.1 OF THIS AGREEMENT, BUYER
ACKNOWLEDGES AND AGREES THAT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD,
IT WILL HAVE CONDUCTED ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF ALL
ASPECTS OF THE PROPERTY, IT WILL BE RELYING ON SUCH INDEPENDENT INVESTIGATION
AND INSPECTION IN PURCHASING THE PROPERTY AND IT WILL NOT BE RELYING ON ANY
INFORMATION PROVIDED BY SELLERS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT AT
CLOSING, BUYER WILL BE FULLY AND COMPLETELY SATISFIED THAT THE PROPERTY IS
SATISFACTORY IN ALL RESPECTS FOR ITS INTENDED USE AND AFTER CLOSING, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 7.1, BUYER WILL HAVE NO RECOURSE WHATSOEVER
AGAINST SELLERS IN CONNECTION WITH ANY ASPECT OF THE PROPERTY, OTHER THAN
SELLERS' WARRANTY OF TITLE CONTAINED IN THE
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DEED. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 7.1, SELLERS HAVE NOT MADE, DO NOT MAKE AND SPECIFICALLY DISCLAIM ANY
AND ALL REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO: (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING THE STABILITY OF THE SOIL; (B) THE INCOME
TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF
THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, BUT NOT LIMITED TO, ANY STATE OR
FEDERAL ENVIRONMENTAL LAWS; OR (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, AND BUYER HEREBY WAIVES ANY SUCH
REPRESENTATION, WARRANTY, PROMISE, COVENANT, AGREEMENT OR GUARANTY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SELLERS ARE CONVEYING THE
PROPERTY TO BUYER "AS IS, WHERE IS," AND "WITH ALL FAULTS."
THE FOREGOING PROVISION WILL SURVIVE CLOSING IN ALL RESPECTS.
7.3 Buyer hereby represents to Sellers that:
7.3(a) Buyer is a real estate investment trust validly
existing under the laws of the State of Maryland;
7.3(b) Buyer is duly organized and has the power (corporate
or otherwise) to carry out its obligations under this
Agreement.
7.3(c) This Agreement is a valid and legally binding
obligation of Buyer in accordance with its terms.
7.3(d) The execution, delivery and performance by Buyer of
this Agreement does not and will not violate any
provision of law, of any order, judgment or decree of
any court or other governmental authority, or of any
agreement or other instrument to which Buyer is a
party or by which Buyer is bound, and will not result
in a breach of or constitute a default under any
agreement or other instrument which could result in
the creation or imposition of any lien, charge or
encumbrance of any kind upon the Property.
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7.3(e) The execution, delivery and performance of the
Agreement, and any and all documents to be executed
by or received by it will not constitute a breach or
default under any other agreement to which Buyer is a
party or by which Buyer may be bound or affects, or a
violation of any law or court order which may affect
the Property, any part thereof, any interest therein,
or the use thereof.
7.3(f) The Confidentiality Agreement attached hereto as
Exhibit E is a true and correct copy of the
Confidentiality Agreement executed by M & P Partners,
an affiliate of Buyer, and Buyer agrees to comply
with the terms of such Confidentiality Agreement.
8. Closing
8.1 The closing ("Closing") of the sale of the Property by Sellers to
Buyer will occur on or before December 5, 1997 (the "Closing Date"). Closing
will occur in the offices of the Title Company or at another place and/or time
as mutually agreed upon Sellers and Buyer, commencing at 12:00 p.m. on the
Closing Date. At Buyer's option, Closing may be an escrow closing without the
need for physical presence at the Title Company's office. At Closing, the
following will occur:
8.1(a) Sellers, at their cost and expense, will deliver or
cause to be delivered to Buyer the following (the
"Closing Documents"):
(i) Special Warranty Deed substantially in form
attached hereto as Exhibit B-1 fully
executed and acknowledged by Investors, and
Special Warranty Deed in substantially the
form attached hereto as Exhibit B-2 fully
executed and acknowledged by Family Life,
conveying to Buyer the Land and
Improvements, subject to the Permitted
Encumbrances (collectively the "Special
Warranty Deeds");
(ii) Special Warranty Bill of Sale in
substantially the form attached hereto as
Exhibit C-1, fully executed by Investors and
accepted by Buyer, and the Special Warranty
Bill of Sale in substantially the form
attached hereto as Exhibit C-2, fully
executed by Family Life and accepted by
Buyer, assigning, conveying and transferring
to Buyer all of the Personal Property
(collectively the "Special Warranty Bill of
Sale");
(iii) An Owner's Policy of Title Insurance ("Title
Policy") issued on the form promulgated by
the Texas Department of Insurance in the
full amount of the Purchase Price issued by
the Title Company, as agent for Chicago
Title Insurance Company, naming Buyer as the
insured, and insuring that Buyer is the fee
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owner of the Land and the Improvements,
subject only to the liens securing Buyer's
loan from Buyer's lender and the Permitted
Encumbrances and otherwise as required by
Buyer prior to the expiration of the
Inspection Period;
(iv) IRC Section 1445 Certification executed and
sworn to by Sellers;
(v) any documents required by the Title Company
necessary to comply with IRC Section 6045;
(vi) the originals, if any, of all Warranties,
Licenses and Plans in the possession of
Sellers;
(vii) originals of all Leases;
(viii) an Assignment and Assumption of Leases in
substantially the form attached hereto as
Exhibit D-1, fully executed by Investors and
Buyer, and an Assignment and Assumption of
Leases in substantially the form attached
hereto as Exhibit D-2, fully executed by
Family Life and Buyer, assigning, conveying
and transferring to Buyer all of the Leases
referred to therein, with Buyer assuming all
of the obligations of the lessor under the
Leases (collectively the "Assignment and
Assumption of Leases");
(ix) a Notice Letter in the form attached hereto
as Exhibit F-1 to be sent to all tenants of
the Property, executed by Investors and
Buyer and a Notice Letter in the form
attached hereto as Exhibit F-2 to be sent to
all tenants of the Property, executed by
Family Life and Buyer; and
(x) all keys to the Improvements in the
possession of Sellers;
(xi) evidence satisfactory to Buyer and Title
Company that the person or persons executing
the Closing Documents on behalf of Sellers
have full right, power and authority to do
so; and
(xii) an affidavit as to debts and liens, if any
existing against the Property.
(xiii) Originals of the Estoppel Certificates
previously provided by Seller to Buyer, or
any updates thereto obtained by Sellers,
together with an assignment by Starwood of
all of its right, title and interest in and
to the Estoppel Certificates, and Estoppel
Certificates from Tivoli Systems Subsidiary,
Inc., Tandem
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Computers, Inc., Amherst Securities, Inc.
and Texas A&M University.
(xiv) Certificate from Sellers' architect that the
Improvements (excluding Bridgepoint One,
which was not constructed by Sellers) have
been substantially completed in accordance
with the applicable plans and specifications
and the plans and specifications were
prepared are in compliance with all
applicable laws, rules and regulations.
8.1(b) Buyer, at its sole cost and expense, will deliver or
cause to be delivered to Sellers the following:
(i) payment of the Purchase Price, less the
Earnest Money with interest;
(ii) the Special Warranty Bill of Sale accepted
by Buyer;
(iii) the Assignment and Assumption of Leases;
(iv) a Notice Letter in the form attached hereto
as Exhibit F to be sent to all tenants of
the Property, executed by Sellers and Buyer;
and
(v) evidence satisfactory to Sellers and the
Title Company that the person executing the
Closing Documents on behalf of Buyer has
full right, power and authority to do so.
8.1(c) On or prior to the Closing Date, Sellers and Buyer
will each execute and deliver Closing Statements,
such affidavits or statements as may be required by
the Title Company to issue the Title Policy, and any
other instruments and documents which will be
reasonably necessary to complete the sale of the
Property.
8.1(d) Each of the Sellers and Buyer will pay its own legal
fees incurred in connection with this Agreement.
8.1(e) Sellers will pay:
(i) cost of the Survey, the Title Commitment and
the Title Insurance premium (not to exceed
the promulgated rate) necessary to issue the
Title Policy referenced in Section 6 hereof;
(ii) a commission due to CB Commercial pursuant
to separate agreement; and
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(iii) all other items which are normally paid by
Sellers in real estate transactions in
Austin, Texas.
8.1(f) Buyer will pay:
(i) the additional premium for modification of
the areas and boundaries exception to read
"shortages in area" only, if the same is
requested by Buyer, as well as any premium
for any other endorsement or the cost of any
inspection fee imposed by the Title Company
to delete the exception for "rights of
parties in possession";
(ii) the cost of Buyer's due diligence
inspection; and
(iii) all other items which are normally paid by
Buyers in real estate transactions in
Austin, Texas.
8.1(g) Any other closing costs not listed above in 8.1(e)
and 8.1(f), including but not limited to Escrow Fees
if any, will be paid one-half by Sellers and one-half
by Buyer.
8.1(h) Upon completion of Closing, Sellers will deliver to
Buyer possession of the Property, subject only to the
rights of the tenants in possession pursuant to the
Leases and the Permitted Encumbrances.
9. Real Property Apportionments.
9.1 The following items shall be apportioned at the Closing as of the
close of business on the day immediately preceding the Closing Date:
9.1(a) all items of income and expense normally apportioned
in sales of property in similar situations;
9.1(b) annual rents, common area maintenance charges and
other fixed charges payable under the Leases and
received by Sellers,
9.1(c) other unfixed charges payable under the Leases and
received by Sellers;
9.1(d) fuel, electric, water and other utility costs;
9.1(e) municipal assessments and governmental license and
permit fees;
9.1(f) real estate taxes and assessments other than special
assessments, based on the 1997 rates and assessed
valuation;
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9.1(g) water rates and charges; and
9.1(h) sewer taxes and rents.
9.2 If any refunds of real property taxes or assessments, water rates
and charges or sewer taxes and rents shall be made after the Closing, the same
shall be held in trust by Sellers or Buyer, as the case may be, and shall first
be applied to the unreimbursed costs incurred in obtaining the same, then to any
required refunds to tenants under the Leases, and the balance, if any, shall be
paid to Sellers (for the period prior to such Closing Date) and to Buyer (for
the period commencing with such Closing Date).
9.3 If, on the Closing Date, the Property shall be or shall have been
affected by any special or general assessment or assessments or real property
taxes payable on a lump sum or which are or may become payable in installments
of which the first installment is then a charge or lien and has become payable,
Sellers shall pay or cause to be paid at the Closing the unpaid installments of
such assessments due up to the Closing Date and Buyer shall be responsible to
pay all installments thereof which are to become due and payable after the
Closing Date.
9.4 No insurance policies of Sellers are to be transferred to Buyer,
and no apportionment of the premiums therefor shall be made.
9.5 At the Closing, Sellers shall transfer to Buyer (or credit to Buyer
against the Allocable Purchase Price) the amount of all unapplied security
deposits held pursuant to the terms of the Leases with respect to the Property.
9.6 If a net amount is owed by Sellers to Buyer pursuant to this
section, such amount shall be credited against the Purchase Price. If a net
amount is owed by Buyer to Sellers pursuant to section, such amount shall be
added to the Purchase Price.
9.7 All adjustments for unpaid leasing commissions and unfunded tenant
improvement allowances shall be apportioned as contemplated by Schedule 3.3.
10. Operation of the Property. From the date hereof until closing, Sellers will
(i) maintain and operate the Property in a manner consistent with Sellers'
maintenance and operation thereof since Sellers acquisition of the Property and
use all reasonable efforts to comply with all requirements of the Leases, (ii)
continue to maintain the insurance coverage with respect to the Property
existing as of the Effective Date, (iii) not enter into any agreement or take
any action that is (a) outside the normal scope of maintaining and operating the
Property or (b) is not terminable on thirty (30) days written notice, (iv) not
remove any items or Personal Property from the Property unless the same is
replaced by Sellers with an article of equal suitability and value, free and
clear of any lien or security interest and (v) not negotiate with or enter into
an agreement to sell the Property to any other prospective purchaser of the
Property.
11. Notices. Any notice or demand provided for or given pursuant to this Lease
shall be in writing and served on the parties at the addresses listed below. Any
notice shall be either (a)
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personally delivered to the address set forth below, in which case it shall be
deemed delivered on the date of delivery to the addressee; or (b) sent by
registered or certified mail/return receipt requested, in which case it shall be
deemed delivered upon receipt or refusal thereof; (c) sent by a nationally
recognized overnight courier, in which case it shall be deemed delivered upon
receipt or refusal thereof ; or (d) sent by telecommunications ("Fax") in which
case it shall be deemed delivered on the day sent, provided an original is sent
to the addressee by a nationally recognized overnight courier within one (1)
business day of the Fax. The addresses and Fax number listed herein may be
changed by written notice to the other parties, provided, however, that no
notice of a change of address or Fax number shall be effective until date of
delivery of such notice. Copies of notice are for informational purposes only
and a failure to give or receive copies of any notice shall not be deemed a
failure to give notice. For purposes of notice, the addresses of the parties
shall be as follows:
If to Buyer: Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Attn: David J. Hegarty
Fax Number: (617) 332-2261
with a copy to: Jennifer Clark, Esq.
Sullivan & Worester, LLP
One Post Office Square
Boston, Massachusetts 02109
Fax Number: (617) 338-2880
and a copy to: Adrian M. Overstreet
5305 Arbutus Cove
Austin, Texas 78746
Fax Number: (512) 327-2495
If to Sellers: Investors Life Insurance Company of North America
701 Brazos, Suite 1400
Austin, Texas 78701
Attn: James M. Grace
Fax Number: (512) 404-5051
Family Life Insurance Company
701 Brazos, Suite 1400
Austin, Texas 78701
Attn: James M. Grace
Fax Number: (512) 404-5051
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with a copy to: Sneed, Vine, & Perry, P.C.
901 Congress Avenue
Austin, Texas 78701
Attn: William D. Brown
Fax Number: (512) 476-1825
Notice from counsel to all parties entitle to notice as set forth in this
Section 10 shall constitute adequate notice.
12. Commissions. Sellers shall pay to CB Commercial ("Broker") any and all
commissions, fees, or other amounts owed to Broker in connection with the sale
of the Property, which payment shall be made in accordance with the Brokerage
Agreement. Sellers shall defend, indemnify, and hold harmless, Buyer from any
claim by Broker or any other party claiming under Sellers for any brokerage,
commission, finder's or other fees relative to this Agreement or the sale of the
Property, and any court costs, attorneys' fees, or other costs or expenses
arising therefrom, and alleged to be due by authorization of Sellers. Buyer
shall defend, indemnify, and hold harmless Sellers from any claim by any party
other than Broker claiming under Buyer for any brokerage, commission, finder's,
or other fees relative to this Agreement or the sale of the Property, and any
court costs, attorneys' fees, or other costs or expenses arising therefrom and
alleged to be due by authorization of Buyer. This provision shall survive
Closing.
13. Assigns. This Agreement shall inure to the benefit of and be binding on the
parties hereto and their respective heirs, legal representatives, successors and
assigns. Notwithstanding the immediately preceding sentence, this Agreement may
not be assigned by the Buyer without the consent of Seller; provided, however,
this Agreement may be assigned directly or indirectly through one or more
entities or intermediaries to an entity which is controlled by, under control
with or controls Buyer without the consent of Sellers, but in no event shall
Buyer be released from its obligations under this Agreement.
14. Destruction, Damage or Taking Before Closing
14.1 In the event of damage to or destruction of all or any portion of
the Property by fire or other casualty, Sellers shall properly notify Buyer of
the nature and extent of such damage or destruction, and the amount, if any, of
insurance proceeds that are available to make such repairs or restoration. In
the event the cost to repair or reconstruct the damage caused by fire or other
casualty to the Property (the "Repair Cost") does not exceed $250,000.00 in the
reasonable estimation of Sellers, then this Agreement shall remain in full force
and effect. If such damage or destruction has not been repaired to the
reasonable satisfaction of Buyer prior to Closing, Sellers shall assign to Buyer
any and all claims for the insurance proceeds of such damage or destruction of
the Property and pay to Buyer or credit against the Purchase Price the amount of
any deductible, but not to exceed the amount required to repair or replace the
portion of the Property destroyed, and Buyer shall take title to the Property
with the assignment of such proceeds and subject to such damage or destruction
with no reduction of the Purchase Price. If Sellers reasonably estimate that the
Repair Cost exceeds $250,000.00, Buyer shall have the option to terminate this
Agreement in accordance with Section 14. If Buyer does not elect to
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terminate, this Agreement shall remain in full force and effect, and if such
damage or destruction has not been repaired to the reasonable satisfaction of
Buyer prior to Closing, Sellers shall assign to Buyer any and all claims for the
insurance proceeds of such damage or destruction of the Property and pay to
Buyer or credit against the Purchase Price the amount of any deductible, but not
to exceed the amount required to repair or replace the portion of the Property
destroyed, and Buyer shall take title to the Property with the assignment of
such proceeds subject to such damage or destruction with no reduction of the
Purchase Price.
14.2 In the event of eminent domain taking or the issuance of a notice
of an eminent domain taking with respect to all or any substantial portion of
the Property which materially affects Buyer's use of the Property and the
existing Improvements prior to the Closing Date, Buyer shall have the option to
terminate this Agreement in accordance with Section 13 within ten (10) business
days after Buyer's receipt of written notice from Sellers (but in no event later
than the Closing Date) advising of such taking or proposed taking, which notice
Sellers hereby agree to give promptly upon notice of such taking or proposed
taking. If Buyer shall elect not to exercise its right to terminate this
Agreement, Buyer shall be obligated to consummate this transaction for the full
Purchase Price (subject to the other provisions of this Agreement) and Buyer
shall be entitled to receive all eminent domain awards and, to the extent the
same may be necessary and appropriate, Sellers shall assign to Buyer at Closing
Sellers' rights to such awards. This provision shall survive Closing.
15. Default and Remedies
15.1 Buyer's Defaults; Seller's Remedies. If Buyer fails to complete
the purchase and sale of the Property, except for a permitted right to terminate
this Agreement specifically set forth herein, the Title Company shall pay the
Earnest Money to Sellers as liquidated damages as Sellers' sole and exclusive
remedy (it being agreed that Sellers shall have no right to enforce specific
performance of this Agreement); and thereafter, this Agreement shall be null and
void and all obligations imposed upon either party shall cease and terminate,
except for Buyer's Termination Obligations. In the event of a default by Buyer,
the parties agree that Sellers' actual damages would be very difficult to
definitively ascertain because of (i) the uncertainties of the real estate
market, (ii) fluctuating property values between the time of this Agreement and
date of breach and (iii) differences of opinion with reference to such matters.
As a result, the parties have agreed upon the liquidated damages as provided
herein.
15.2 Sellers' Defaults; Buyer's Remedies. If Sellers fail to complete
the purchase and sale of the Property for any reason other than those herein
provided in this Agreement, Buyer, as Buyer's sole and exclusive remedies, shall
either (i) receive an immediate refund of the Earnest Money and in such event
this Agreement shall be null and void and the parties shall have no further
obligation or liability hereunder, except for Buyer's Termination Obligations,
(ii) seek specific performance of this Agreement, or (iii) sue for damages not
to exceed the lesser of (a) Buyer's actual out-of-pocket costs paid to unrelated
third parties in connection with the negotiation of this Agreement and Buyer's
due diligence related to the Property, or (b) $25,000.00.
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16. Miscellaneous
16.1 Representations and Warranties Do Not Survive Closing. Except
as specifically set forth herein, any and all representations,
warranties, covenants and agreements of Sellers and Buyer, as
well as any rights and benefits arising hereunder, shall not
survive the Closing, but shall be merged therein.
16.2 Entire Agreement; Modification. This Agreement embodies the
entire agreement of the parties hereto, and cannot, under any
circumstances, be modified orally, and no agreement shall be
effective to waive, change, modify or discharge this Agreement
in whole or in part unless such agreement is in writing and is
signed by both Sellers and Buyer.
16.3 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between Sellers and Buyer
pertaining to the subject matter hereof and fully supersedes
all prior agreements and understanding between Sellers and
Buyer pertaining to such subject matter.
16.4 Further Assurances. Both Sellers and Buyer agree that it will,
without further consideration, execute and deliver such other
documents and take such other action, whether prior to
subsequent to Closing, as may be reasonably requested by the
other party to consummate more effectively the purposes or
subject matter of this Agreement. This provision shall survive
Closing.
16.5 Counterparts; Facsimile Signatures. This Agreement may be
executed in multiple counterparts which, when combined
together, shall constitute an original of this Agreement, and
all such executed counterparts shall constitute the same
Agreement. It shall be necessary to account for only one such
counterpart in proving this Agreement. In addition, facsimile
signatures of the parties shall be effective on all
counterparts of this Agreement.
16.6 Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable
provision had never been contained herein, and the remainder
of this Agreement shall nonetheless remain in full force and
effect.
16.7 Applicable Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Texas without
regard to the principles of conflicts of law. The
enforceability or invalidity of any one or more provisions
hereby shall not affect the enforceability or validity of any
other provision hereof.
16.8 Section Headings. Section headings contained herein are for
convenience only and shall not be deemed to construe or limit
the meaning of the language
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contained in this Agreement, or be used as interpreting the
meanings and provisions hereof.
16.9 Construction. If the last day of any time period stated herein
shall fall on a Saturday, Sunday or legal holiday, then the
duration of such time period shall be extended so that it
shall end on the next succeeding day which is not a Saturday,
Sunday or legal holiday. Whenever used in this Agreement, the
singular shall include the plural, the plural shall include
the singular, and the use of any gender shall be applicable to
all genders. The parties acknowledge that their attorneys have
reviewed and negotiated the provisions of this Agreement;
therefore, the rule of construction that any ambiguities are
to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
16.10 Covenant not to Record. Buyer will not record this Agreement.
Any attempted recording of this Agreement shall constitute a
default hereunder on the part of Buyer and Sellers shall have
the immediate right to terminate this Agreement.
16.11 Binding Effect. Without limiting the effect of Section 12
hereof, this Agreement shall extend to and be binding upon the
successors, assigns, nominees and/or other legal
representatives of the parties hereto.
16.12 Time of Essence. Time is of the essence of this Agreement.
16.13 Effective Date. The "Effective Date" of this Agreement is the
date this Agreement has been fully executed by Sellers and
Buyer.
16.14 Allocation of Liability. It is expressly understood and agreed
that Sellers shall be liable to third parties for any and all
obligations, claims, losses, damages, liabilities, and
expenses arising out of events, contractual obligations, acts,
or omissions of Sellers that occurred in connection with the
ownership or operation of the Property prior to the Closing
and Buyer shall be liable to third parties for any and all
obligations, claims, losses, damages, liabilities and expenses
arising out of events, contractual obligations, acts, or
omissions of Buyer that occur in connection with the ownership
or operation of the Property after the Closing. The provisions
of this section shall survive the Closing.
16.15 Nonliability of Trustees. THE DECLARATION OF TRUST
ESTABLISHING BUYER, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY,
AND THAT NO TRUSTEE, OFFICER,
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SHAREHOLDER, EMPLOYEE OR AGENT OF BUYER SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION
OF, OR CLAIM AGAINST, BUYER. ALL PERSONS DEALING WITH BUYER,
IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF BUYER FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING.
16.16 Financials. Sellers shall provide the Buyer with access to the
books and records of Sellers solely as related to the
Property, for the purpose of allowing Buyer's independent
auditors to prepare audited financial statements for the
Property with respect to the 1996 and 1997 calendar years,
such financial statements to be prepared at the Buyer's sole
cost and expense. The provisions of this section shall survive
the Closing hereunder.
16.17 Publicity. The parties agree that no party shall, with respect
to this Agreement and the transactions contemplated hereby,
contact or conduct negotiations with public officials, make
any public pronouncements, issue press releases or otherwise
furnish information regarding this Agreement or the
transactions contemplated to any third party without the
consent of the other party, which consent shall not be
unreasonably withheld. Sellers shall not trade in the
securities of the Buyer until a public announcement of the
transactions contemplated by this Agreement has been made. No
party shall record this Agreement or any notice thereof.
22
<PAGE>
IN WITNESS WHEREOF, Buyer and Sellers have executed this Agreement as
of the date first set forth next to their respective signatures.
SELLERS: INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA, a Washington corporation
Date: November 24, 1997. By: /s/ Roy F. Mitte, President
Roy F. Mitte, President
FAMILY LIFE INSURANCE COMPANY, a
Washington corporation
Date:November 24, 1997. By: /s/ Roy F. Mitte, President
Roy F. Mitte, President
BUYER: HEALTH AND RETIREMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
Date:November 24, 1997. By: /s/ David J. Hegarty
David J. Hegarty, President
23
<PAGE>
RECEIPT OF EARNEST MONEY DEPOSIT
AND AGREEMENT OF ESCROW AGENT
Escrow Agent hereby acknowledges the receipt of the following:
(i) one (1) fully signed and executed copy of this Agreement; and
(ii) the Earnest Money deposit in the amount of $7,000,000.00.
Escrow Agent hereby agrees to act as Escrow Agent under and pursuant to the
terms of this Agreement.
ESCROW AGENT:
HERITAGE TITLE COMPANY OF AUSTIN,INC.
By:/s/ Jancox Dwyer
Title:
Date: November 26, 1997
24
<PAGE>
The exhibits to this agreement, which are summarized on the second page of this
document at "EXHIBITS", have been omitted pursuant to Regulation S-K, Item
601(2). A copy of such exhibits will be provided to the Securities and Exchange
Commission upon request.
EXHIBIT 4.1
HEALTH AND RETIREMENT PROPERTIES TRUST
TO
STATE STREET BANK AND TRUST COMPANY
Trustee
Indenture
Dated as of December 18, 1997
Unsecured Debt Securities
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS1
PAGE
<S> <C> <C> <C>
PARTIES...................................................................................................................1
RECITALS..................................................................................................................1
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........................................................1
Section 101. Definitions........................................................................................1
"Act"............................................................................................................1
"Additional Amounts".............................................................................................1
"Affiliate"......................................................................................................1
"Authenticating Agent"...........................................................................................2
"Authorized Newspaper"...........................................................................................2
"Bankruptcy Law".................................................................................................2
"Bearer Security"................................................................................................2
"Board"..........................................................................................................2
"Board Resolution"...............................................................................................2
"Business Day"...................................................................................................2
"CEDEL"..........................................................................................................2
"Commission".....................................................................................................2
"Common Depositary"..............................................................................................2
"Company"........................................................................................................2
"Company Request" and "Company Order"............................................................................2
"Conversion Event"...............................................................................................2
"Corporate Trust Office".........................................................................................2
"corporation"....................................................................................................2
"coupon".........................................................................................................3
"Custodian"......................................................................................................3
"Declaration"....................................................................................................3
"Defaulted Interest".............................................................................................3
"Dollar" or "$"..................................................................................................3
"DTC"............................................................................................................3
"ECU"............................................................................................................3
"Euroclear"......................................................................................................3
"European Communities"...........................................................................................3
"European Monetary System".......................................................................................3
"Event of Default"...............................................................................................3
"Exchange Date"..................................................................................................3
"Foreign Currency"...............................................................................................3
"Funds from Operations"..........................................................................................3
"GAAP"...........................................................................................................3
"Government Obligations".........................................................................................3
"Holder".........................................................................................................4
"Indenture"......................................................................................................4
"Indexed Security"...............................................................................................4
"interest".......................................................................................................4
"Interest Payment Date"..........................................................................................4
"Maturity".......................................................................................................4
"Officers' Certificate"..........................................................................................4
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1 This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.
<PAGE>
"Opinion of Counsel".............................................................................................4
"Original Issue Discount Security"...............................................................................4
"Outstanding"....................................................................................................4
"Paying Agent"...................................................................................................5
"Person".........................................................................................................5
"Place of Payment"...............................................................................................5
"Predecessor Security"...........................................................................................5
"Redemption Date"................................................................................................5
"Redemption Price"...............................................................................................5
"Registered Security"............................................................................................5
"Regular Record Date"............................................................................................6
"Repayment Date".................................................................................................6
"Responsible Officer"............................................................................................6
"Security".......................................................................................................6
"Security Register" and "Security Registrar".....................................................................6
"Significant Subsidiary".........................................................................................6
"Special Record Date"............................................................................................6
"Stated Maturity"................................................................................................6
"Subsidiary".....................................................................................................6
"Trust Indenture Act" or "TIA"...................................................................................6
"Trustee"........................................................................................................6
"United States"..................................................................................................6
"United States person"...........................................................................................6
"Yield to Maturity"..............................................................................................7
Section 102. Compliance Certificates and Opinions...............................................................7
Section 103. Form of Documents Delivered to Trustee.............................................................7
Section 104. Acts of Holders....................................................................................7
Section 105. Notices, etc., to Trustee and Company..............................................................8
Section 106. Notice to Holders; Waiver..........................................................................9
Section 107. Effect of Headings and Table of Contents...........................................................9
Section 108. Successors and Assigns.............................................................................9
Section 109. Separability Clause...............................................................................10
Section 110. Benefits of Indenture.............................................................................10
Section 111. Governing Law.....................................................................................10
Section 112. Legal Holidays....................................................................................10
Section 113. No Personal Liability.............................................................................10
ARTICLE 2 SECURITIES FORMS................................................................................................10
Section 201. Forms of Securities...............................................................................10
Section 202. Form of Trustee's Certificate of Authentication...................................................11
Section 203. Securities Issuable in Global Form................................................................11
ARTICLE 3 THE SECURITIES..................................................................................................11
Section 301. Amount Unlimited; Issuable in Series..............................................................11
Section 302. Denominations.....................................................................................14
Section 303. Execution, Authentication, Delivery and Dating....................................................14
Section 304. Temporary Securities..............................................................................16
Section 305. Registration, Registration of Transfer and Exchange...............................................17
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..................................................19
Section 307. Payment of Interest; Interest Rights Preserved....................................................20
Section 308. Persons Deemed Owners.............................................................................22
Section 309. Cancellation......................................................................................22
Section 310. Computation of Interest...........................................................................22
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<PAGE>
ARTICLE 4 SATISFACTION AND DISCHARGE......................................................................................22
Section 401. Satisfaction and Discharge of Indenture...........................................................22
Section 402. Application of Trust Funds........................................................................23
ARTICLE 5 REMEDIES........................................................................................................24
Section 501. Events of Default.................................................................................24
Section 502. Acceleration of Maturity; Rescission and Annulment................................................25
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................................26
Section 504. Trustee May File Proofs of Claim..................................................................26
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons............................27
Section 506. Application of Money Collected....................................................................27
Section 507. Limitation on Suits...............................................................................27
Section 508. Unconditional Right of Holders to Receive Principal, Premium, if any, Interest and
Additional Amounts.............................................................................28
Section 509. Restoration of Rights and Remedies................................................................28
Section 510. Rights and Remedies Cumulative....................................................................28
Section 511. Delay or Omission Not Waiver......................................................................28
Section 512. Control by Holders of Securities..................................................................28
Section 513. Waiver of Past Defaults...........................................................................28
Section 514. Waiver of Usury, Stay or Extension Laws...........................................................29
Section 515. Undertaking for Costs.............................................................................29
ARTICLE 6 THE TRUSTEE.....................................................................................................29
Section 601. Notice of Defaults................................................................................29
Section 602. Certain Rights of Trustee.........................................................................29
Section 603. Not Responsible for Recitals or Issuance of Securities............................................30
Section 604. May Hold Securities...............................................................................30
Section 605. Money Held in Trust...............................................................................30
Section 606. Compensation and Reimbursement....................................................................30
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests....................................31
Section 608. Resignation and Removal; Appointment of Successor.................................................31
Section 609. Acceptance of Appointment by Successor............................................................32
Section 610. Merger, Conversion, Consolidation or Succession to Business.......................................33
Section 611. Appointment of Authentication Agent...............................................................33
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............................................................34
Section 701. Disclosure of Names and Addresses of Holders......................................................34
Section 702. Reports by Trustee................................................................................34
Section 703. Reports by Company................................................................................34
Section 704. Company to Furnish to Trustee Names and Addresses of Holders......................................35
ARTICLE 8 CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE................................................................35
Section 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject
to Certain Conditions.........................................................................35
Section 802. Rights and Duties of Successor Corporation........................................................36
Section 803. Officers' Certificate and Opinion of Counsel......................................................36
ARTICLE 9 SUPPLEMENTAL INDENTURES.........................................................................................36
Section 901. Supplemental Indentures Without Consent of Holders................................................36
Section 902. Supplemental Indentures with Consent of Holders...................................................37
Section 903. Execution of Supplemental Indentures..............................................................38
Section 904. Effect of Supplemental Indentures.................................................................38
Section 905. Conformity with Trust Indenture Act...............................................................38
-iii-
<PAGE>
Section 906. Reference in Securities to Supplemental Indentures................................................38
ARTICLE 10 COVENANTS.......................................................................................................38
Section 1001. Payment of Principal, Premium, if any, Interest and Additional Amounts...........................38
Section 1002. Maintenance of Office or Agency..................................................................38
Section 1003. Money for Securities Payments to Be Held in Trust................................................40
Section 1004. Existence........................................................................................40
Section 1005. Provision of Financial Information...............................................................41
Section 1006. Statement as to Compliance.......................................................................41
Section 1007. Additional Amounts...............................................................................41
Section 1008. Waiver of Certain Covenants......................................................................42
ARTICLE 11 REDEMPTION OF SECURITIES........................................................................................42
Section 1101. Applicability of Article.........................................................................42
Section 1102. Election to Redeem; Notice to Trustee............................................................42
Section 1103. Selection by Trustee of Securities to Be Redeemed................................................42
Section 1104. Notice of Redemption.............................................................................42
Section 1105. Deposit of Redemption Price......................................................................43
Section 1106. Securities Payable on Redemption Date............................................................44
Section 1107. Securities Redeemed in Part......................................................................44
ARTICLE 12 SINKING FUNDS...................................................................................................44
Section 1201. Applicability of Article.........................................................................44
Section 1202. Satisfaction of Sinking Fund Payments with Securities............................................45
Section 1203. Redemption of Securities for Sinking Fund........................................................45
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS..............................................................................45
Section 1301. Applicability of Article.........................................................................45
Section 1302. Repayment of Securities..........................................................................45
Section 1303. Exercise of Option...............................................................................45
Section 1304. When Securities Presented for Repayment Become Due and Payable...................................46
Section 1305. Securities Repaid in Part........................................................................46
ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE..............................................................................47
Section 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance...........47
Section 1402. Defeasance and Discharge.........................................................................47
Section 1403. Covenant Defeasance..............................................................................47
Section 1404. Conditions to Defeasance or Covenant Defeasance..................................................48
Section 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions....................................................................................49
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES...............................................................................49
Section 1501. Purposes for Which Meetings May Be Called.......................................................50
Section 1502. Call, Notice and Place of Meetings...............................................................50
Section 1503. Persons Entitled to Vote at Meetings.............................................................50
Section 1504. Quorum; Action...................................................................................50
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..............................51
Section 1506. Counting Votes and Recording Action of Meetings..................................................51
EXHIBIT A - FORMS OF CERTIFICATION...............................................................................................A-1
</TABLE>
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<PAGE>
INDENTURE, dated as of December 18, 1997, between HEALTH AND RETIREMENT
PROPERTIES TRUST, a Maryland real estate investment trust (hereinafter called
the "Company"), having its principal office at 400 Centre Street, Newton,
Massachusetts 02158 and STATE STREET BANK AND TRUST COMPANY, as Trustee
hereunder (hereinafter called the "Trustee"), having its initial Corporate Trust
Office at Two International Place, Boston, Massachusetts 02110.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for lawful
purposes its unsecured debt securities (hereinafter called the "Securities")
evidencing its unsecured indebtedness, and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture by
such Act, and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 3, Article 5, Article 6 and
Article 10, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly
<PAGE>
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board" means the board of trustees of the Company or any committee of
that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the President or a Vice
President, and by its Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institution of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Two International
Place, Boston, Massachusetts 02110.
2
<PAGE>
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Declaration" has the meaning specified in Section 113.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company, or any successor thereto.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article 5.
"Exchange Date" has the meaning specified in Section 304.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Funds from Operations" for any period means the consolidated net
income of the Company and its Subsidiaries for such period without giving effect
to depreciation and amortization, gains or losses from extraordinary items,
gains or losses on sales of real estate, gains or losses on investments in
marketable securities and any provision/benefit for income taxes for such
period, plus funds from operations of unconsolidated joint ventures, all
determined on a consistent basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles in effect from
time to time as used in the United States applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such
3
<PAGE>
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more applicable provisions hereof and shall
include the terms of the or those particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (including counsel who is an employee of the Company)
and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
4
<PAGE>
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article 14;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Shares, Preferred Shares
or other securities of the Company pursuant to or in accordance with
this Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"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.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
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"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
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"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1006) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by or covered by an opinion of any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
as to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate of or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel, certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or any Subsidiary stating that the information as to such factual
matters is in the possession of the Company or such Subsidiary, unless such
counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 15, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
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(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department Re: Health and Retirement
Properties Trust 6 3/4% Senior Notes due December 18, 2002; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Registered Holder in
the manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 111. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of The
Commonwealth of Massachusetts. This Indenture is subject to the provisions of
the TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
Section 112. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) or sinking
fund payment need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
Section 113. No Personal Liability. THE AMENDED AND RESTATED
DECLARATION OF TRUST OF THE COMPANY, DATED JULY 1, 1994, A COPY OF WHICH,
TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE
OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDES THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES TRUST" REFERS TO THE
TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE
COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE
COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
ARTICLE 2
SECURITIES FORMS
Section 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301,
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shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Securities may be listed, or to conform to
usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
______________________________
as Trustee
By______________________________
Authorized Officer
Section 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified in and as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in
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registered form, the Holder of such permanent global Security in registered form
or (ii) in the case of a permanent global Security in bearer form, Euroclear or
CEDEL.
ARTICLE 3
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303 set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (14) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of
the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest will be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places where the principal of, any premium
and interest on and any Additional Amounts payable in respect of,
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, exchange or
conversion and notices or demands to or upon the Company in respect of
the Securities of the series and this Indenture may be served;
(6) the period or periods within which or the date or dates on
which, the price or prices at which, and other terms and conditions
upon which Securities of the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and the denomination or denominations
in which any Bearer Securities of the series shall be issuable;
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(9) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium, if any), interest,
if any, on, and Additional Amounts, if any, on the Securities of the
series shall be payable, in which the Securities of the series shall be
redeemed or purchased or in which the Securities of the series shall be
denominated;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or, if applicable, the portion of the principal
amount of Securities of the series that is convertible in accordance
with the provisions of this Indenture, or the method by which such
portion shall be determined;
(11) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(12) whether the principal of (and premium, if any) or
interest, if any on or Additional Amounts, if any, on the Securities of
the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be paid;
(13) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(14) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company set forth in this
Indenture with respect to Securities of the series (whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein);
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Registered Securities of the series
are to be issuable as a global Security, the identity of the depositary
for such series;
(16) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(17) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
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(18) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article 14;
(19) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(20) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(21) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into Common Shares or
Preferred Shares of the Company or other securities, as the case may
be, and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price
or rate, the conversion period, any adjustment of the applicable
conversion price and any requirements relative to the reservation of
such shares for purposes of conversion);
(23) the terms and conditions, if any, upon which payment of
the Securities of such series shall be subordinated to the Securities
of another series or other indebtedness of the Company (including,
without limitation, indebtedness which ranks senior to such Securities;
restrictions on payments to Holders of such Securities while a default
with respect to such senior indebtedness is continuing; restrictions,
if any, on payments to the Holders of such Securities following an
Event of Default; and any requirements for Holders of such Securities
to remit certain payments to the holders of such senior indebtedness);
(24) if the Securities of the series are to be guaranteed, the
term and conditions of such guarantee;
(25) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent for the series; and
(26) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denominations and except as may otherwise
be provided in or pursuant to the Board Resolution establishing the series
(subject to Section 303) and set forth in an Officers' Certificate or in any
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
Section 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions, the Registered Securities of such series, other
than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
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Section 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its President or one of its Vice Presidents, under its seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and
to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the
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signers of such certificate, no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
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Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
a temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect
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to a beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by Euroclear
and CEDEL and not paid as herein provided shall be returned to the Trustee prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
Section 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant 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,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
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 the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Bearer Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
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Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, if so required by applicable
law or regulation, the Company shall appoint a successor depositary with respect
to such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
of like series, rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event no later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent 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 relevant 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 Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion or such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
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business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and of
like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except that portion, if any, of such Security which is not to be so
repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of written notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable,
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and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest on any Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 308, to the address of such Person
as it appears on the Security Register or (ii) transfer to an account maintained
by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at
the same time the Company shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall not be more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special
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Record Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is surrendered for
transfer or exchange at the office or agency in a Place of Payment for
such series after the close of business at such office or agency on 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, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon is overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and coupons held by
the Trustee shall be destroyed
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by the Trustee and the Trustee shall deliver a certificate of such destruction
to the Company, unless by a Company Order the Company directs their return to
it.
Section 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1007), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
1106, and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto, not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one
year, or
(iii) if redeemable at the option of the
Company, are to be called for
redemption within one year under
arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the
name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
funds in trust for such purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any Additional
Amounts with respect thereto, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
The obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
the satisfaction and discharge of this Indenture.
Section 402. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE 5
REMEDIES
Section 501. Events of Default. "Event of Default", wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series or
of any coupon appertaining thereto, when such interest, Additional
Amounts or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance of, or breach of, any covenant
of the Company in this Indenture (other than a covenant a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than
that series), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least a majority in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness of the Company, or under any mortgage,
indenture or other instrument of the Company (including a default with
respect to Securities of any series other than that series) under which
there may be issued or by which there may be secured any indebtedness
of the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible
or liable as obligor or guarantor), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay an aggregate principal amount exceeding $20,000,000 of
such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in
such indebtedness in an aggregate principal amount exceeding
$20,000,000 becoming or being declared due and payable prior to the
date on which it would
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otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or
annulled, within a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least a majority in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing (other than an Event of Default described
in Section 501(6) or 501(7)), then and in every such case the Trustee or the
Holders of not less than a majority in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable. If an Event of Default described in Section 501(6) or 501(7)
with respect to any series of Securities at the time outstanding occurs, the
principal amount of all of the Securities of that series (or, in the case of any
such Original Issue Discount Securities or Indexed Securities, such portion of
the principal as may be specified in the terms thereof) will automatically, and
without any action by the Trustee or any Holder thereof, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Securities of
that series and any related coupons,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at the
rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided for in
such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if
any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series
and any related coupon when such interest or Additional Amount becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts thereon, with interest upon
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts thereon, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
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Section 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal of, or premium, if any, or interest on, the Securities) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and Additional Amount,
if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of Securities
and coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee and
any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and coupons for principal (and
premium, if any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company.
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Section 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
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Section 512. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series;
provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might expose it
to personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than a majority in principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE 6
THE TRUSTEE
Section 601. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided,
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however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on or any Additional Amounts or sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interest of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
Section 602. Certain Rights of Trustee. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting to take any action hereunder,
the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.
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Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
Section 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or coupons.
The provisions of this Section shall survive the termination of this
Indenture.
Section 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, state, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
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Section 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any reason with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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Section 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, upon request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article 9 hereof, wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in, and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 611. Appointment of Authentication Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration
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of transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By:_________________________________
as Authenticating Agent
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By:__________________________________
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
Section 702. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
Section 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this section as may be required
by rules and regulations prescribed from time to time by the
Commission.
Section 704. Company to Furnish to Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 25 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semiannually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
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provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE 8
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation; provided that in any
such case, (i) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1007) on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article 9 hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation and (ii)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event which, after notice
or the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
Section 802. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
Section 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption of the Company's obligations under
this Indenture by any successor corporation, complies with the provisions of
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) 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
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided, that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into
Common Shares or Preferred Shares of the Company, as the case may be;
or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
Section 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions
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to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or reduce the principal amount thereof or the rate or
amount of interest thereon or any Additional Amounts payable in respect
thereof, or any premium payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to
Section 1007 (except as contemplated by Section 801(i) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase the required percentage to effect
such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee
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and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE 10
COVENANTS
Section 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1007 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
Section 1002. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) or conversion at the offices specified in the Security in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
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Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1007) shall be made at the office of the Company's Paying
Agent in the City of Boston, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for such
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the City of Boston, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 302, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, by no later than 11:00 am
(Boston time) on each due date of the principal of (and premium, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium, if any) or interest
or Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, such Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. Existence. Subject to Article 8, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (declaration and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Board shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 1005. Provision of Financial Information. Whether or not the
Company is subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, the Company will, to the extent permitted under the Securities
Exchange Act of 1934, as amended, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the Commission pursuant to such Section 13 or 15(d) (the "Financial
Statements") if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, if the Company were subject to such Sections,
and (ii) file with the Trustee copies of the annual reports, quarterly reports
and other documents which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, if the Company were subject to such Sections and (y) if filing
such documents by the Company with the Commission is not permitted under the
Securities Exchange Act of 1934, as amended, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder.
Section 1006. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture and, in the
event of any noncompliance, specifying such noncompliance and the nature and
status thereof. For purposes of this Section 1006, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
Section 1007. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 502(1), the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of
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any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
20 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
Section 1008. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 or 1005, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding Securities
of such series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected
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not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106 and as may be further specified in an
indenture supplemental hereto, not less than 30 days nor more than 60 days prior
to the Redemption Date, unless a shorter period is specified by the terms of
such series established pursuant to Section 301, to each Holder of Securities to
be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holders receive such notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional
Amounts, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying Agent is
furnished,
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(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit of Redemption Price. On or prior to 11:00 am
(Boston time) on any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
which it may not do in the case of a sinking fund payment under Article 12,
segregate and hold in trust as provided in Section 1003) an amount of money in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities convertible into
Common Shares or Preferred Shares of the Company, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
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Section 1107. Securities Redeemed in Part. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article 12) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
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Section 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
Section 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
Section 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder or by the Holder's attorney duly authorized in writing or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
Section 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more
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Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
Section 1402. Defeasance and Discharge. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003 and with respect to
the payment of Additional Amounts, if any, on such
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Securities as contemplated by Section 1007, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article 14. Subject
to compliance with this Article 14, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any coupons appertaining thereto.
Section 1403. Covenant Defeasance. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 1004 and 1005 and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 and 1005 or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(9) or otherwise, as the case may be, but
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Article 14 applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, (1) an amount
in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of
(and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto, or (2) Government
Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and
of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
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(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under Section 1403,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance under
Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of
the Company's option under Section 1402 or Section 1403 (as
the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company,
with respect to the trust funds representing such deposit or
by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or
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currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, in the case of such an election, or, the applicable market
exchange rate in effect for such currency or currency unit (as nearly as
feasible), in the case of such Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the City of Boston, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Boston, or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of
50
<PAGE>
a series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the
51
<PAGE>
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as an instrument under seal, as of the day and year first above
written.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By: /s/ David J. Hegarty
Title: President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Robert L. Bice II
Title: Vice President
52
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institutions hereby agrees, on its own behalf or through its agent,
that you may advise Health and Rehabilitation Properties Trust or its agent that
such financial institutions will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(1)(i)(D)(7), and, in addition, if the owner is a United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institutions has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to (U.S.$) _______________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
A-1
<PAGE>
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institutions will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-3
<PAGE>
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date: 19
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company
New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
A-4
EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
by and between
HEALTH AND RETIREMENT PROPERTIES TRUST
and
STATE STREET BANK AND TRUST COMPANY
as of December 18, 1997
SUPPLEMENTAL TO THE INDENTURE DATED AS OF DECEMBER 18, 1997
------------------------------------
HEALTH AND RETIREMENT PROPERTIES TRUST
$150,000,000 6 3/4% Senior Notes due December 18, 2002
<PAGE>
This SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") made and
entered into as of December 18, 1997 between HEALTH AND RETIREMENT PROPERTIES
TRUST, a Maryland real estate investment trust (the "Company"), and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee (the
"Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of December 18, 1997 (the "Indenture"), relating to the
Company's issuance, from time to time, of various series of debt securities; and
WHEREAS, the Company has determined to issue debt securities known as
its $150,000,000 6 3/4% Senior Notes due December 18, 2002; and
WHEREAS, the Indenture provides that certain terms and conditions for
each series of debt securities issued by the Company thereunder may be set forth
in an indenture supplemental to the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINED TERMS
Section 1.1 The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 1.1 of the Indenture:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person's becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Debt Service" as of any date means the maximum amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York or in the city in which
the Corporate Trust Office of the Trustee is located, are required or authorized
to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participation or other ownership
interests (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus
<PAGE>
amounts which have been added, for the following (without duplication): (i)
interest on Debt of the Company and its Subsidiaries, (ii) provision for taxes
of the Company and its Subsidiaries based on income, (iii) amortization of debt
discount and deferred financing costs, (iv) provisions for gains and losses on
properties and property depreciation and amortization, (v) the effect of any
noncash charge resulting from a change in accounting principles in determining
Earnings from Operations for such period and (vi) amortization of deferred
charges.
"Debt" of the Company or any Subsidiary means, without duplication, any
indebtedness of the Company or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness for borrowed money secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, (iii)
the reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued (other than letters of credit issued to
provide credit enhancement or support with respect to other indebtedness of the
Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, or (v) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
GAAP, to the extent, in the case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of credit) would appear as
a liability on the Company's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock or shares), (ii) is convertible into or exchangeable or exercisable for
Debt or Disqualified Stock, or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for common stock or shares), in each case on or prior to the
Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items and property
valuation losses, as reflected in the financial statements of the Company and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
-2-
<PAGE>
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind.
"Exchange Notes" means the senior notes of the Company with terms
substantially identical to the 6 3/4% Senior Notes due December 18, 2002 of the
Company issued in the Exchange Offer made by the Company pursuant to the
Registration Rights Agreement and this Supplemental Indenture.
"Exchange Offer" means the exchange offer registered under the
Securities Act made in accordance with the Registration Rights Agreement
pursuant to which the Company will exchange the Notes for senior notes of the
Company with substantially identical terms.
"Initial Purchaser" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated
"Interest Payment Date" means any date interest is paid on the Notes.
"Issuance Date" means the closing date for the sale and original
issuance of the Notes.
"Liquidated Damages" has the meaning set out in the Registration Rights
Agreement.
"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 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. For purposes of this Supplemental Indenture and the
Notes, references in the Indenture to the payment of the principal (and premium,
if any) and interest on the Notes shall be deemed to include the payment of the
Make-Whole Amount, if any, due upon redemption with respect to the Notes.
"Notes" means the Company's $150,000,000 aggregate principal amount of
6 3/4% Senior Notes, due December 18, 2002, issued under this Indenture
(including, without limitation, any Exchange Notes issued in respect of the
Notes in connection with the Exchange Offer), as amended or supplemented from
time to time.
"Record Date" means the fifteenth calendar day, whether or not a
Business Day, next preceding the applicable Interest Payment Date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issuance Date, by and among the Company and the
Initial Purchaser, as amended or supplemented from time to time.
-3-
<PAGE>
"Reinvestment Rate" means 0.25% (twenty-five one hundredths of one
percent) plus the yield on treasury securities at constant maturity under the
heading "Week Ending" 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 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.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Debt secured by any mortgage, lien, charge, pledge
or security interest of any kind.
"Securities Act" means the Securities Act of 1933, as amended.
"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 this
Supplemental Indenture, then any publicly available source of similar market
data which shall be designated by the Company.
"Subsidiary" means any corporation or other entity of which a majority
of (i) the voting power of the voting equity securities or (ii) the outstanding
equity interests of which are owned, directly or indirectly, by the Company or
one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its
-4-
<PAGE>
Subsidiaries not subject to an Encumbrance for borrowed money determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"Unsecured Debt" means Debt which is not secured by any of the
properties of the Company or any Subsidiary.
ARTICLE 2
TERMS OF THE NOTES
Section 2.1 Pursuant to Section 3.1 of the Indenture, the Notes shall
have the following terms and conditions:
(a) Title; Limitation on Aggregate Principal Amount; Form of Notes. The
Notes shall be known as the Company's $150,000,000 6 3/4% Senior Notes due
December 18, 2002. The Notes will be limited to an aggregate principal amount of
$150,000,000. The Notes (together with the Trustee's certificate of
authentication) shall be substantially in the form of Exhibit A hereto (with the
appropriate legend or legends placed thereon), which is hereby incorporated in
and made a part of this Supplemental Indenture.
Notes offered and sold in offshore transactions in reliance on
Regulation S will be issued initially in the form of a permanent global
certificate in fully registered form without interest coupons substantially in
the form as above provided (the "Unrestricted Global Note"), and will be
registered in the name of a nominee of DTC and deposited with the Trustee as
custodian for DTC. On or prior to the 40th day after the later of the
commencement of the offering of the Notes and the Issuance Date (which date
shall be certified to the Trustee in an Officer's Certificate), beneficial
interests in the Unrestricted Global Note may be held only through Euroclear or
CEDEL. Beginning 41 days after the later of the commencement of the offering of
the Notes and the Issuance Date (but not earlier), such interests may also be
held through organizations other than Euroclear and CEDEL that are participants
in the DTC system.
Notes offered and sold in reliance on Rule 144A will be issued
initially in the form of a permanent global certificate in fully registered form
without interest coupons substantially in the form as above provided (the
"Restricted Global Note" and, together with the Unrestricted Global Note, the
"Global Notes") and will be registered in the name of a nominee of DTC and
deposited with the Trustee as custodian for DTC. The Notes sold to other
investors in the United States will be issued initially in the form of
individual certificates in fully registered form, without coupons. On or prior
to the 40th day after the later of the commencement of the offering of the Notes
and the Issuance Date, a beneficial interest in the Unrestricted Global Note may
be transferred to a Person who takes delivery in the form of an interest in the
Restricted Global Note only upon receipt by the
-5-
<PAGE>
Trustee of a written certification from the transferor to the effect that such
transfer is being made to a Person whom the transferor reasonably believes to be
a QIB purchasing Notes for its own account or an account with respect to which
it exercises sole investment discretion in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities laws
of any state of the United States or any other jurisdiction (a "Restricted
Global Note Certification"). After such 40th day, such certification requirement
will no longer apply to such transfers. Beneficial interests in the Restricted
Global Note may be transferred to a Person who takes delivery in the form of an
interest in the Unrestricted Global Note, whether before, on or after such 40th
day, only upon receipt by the Trustee of a written certification from the
transferor to the effect that such transfer is being made in accordance with
Rule 903 or 904 of Regulation S or Rule 144 under the Securities Act (an
"Unrestricted Global Note Certification"). Any beneficial interest in one of the
Global Notes that is transferred to a Person who takes delivery in the form of
an interest in the other Global Note will, upon transfer, cease to be an
interest in such Global Note and will become an interest in the other Global
Note and, accordingly, will thereafter be subject to all transfer restrictions
and other procedures and restrictions applicable to beneficial interests in such
other Global Note for as long as it remains such an interest.
Ownership of beneficial interests in a Global Note will be limited to
Persons who have accounts with DTC ("DTC Participants") or Persons who hold
interests through DTC Participants. Ownership of beneficial interests in the
Global Notes will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with respect to
interests of DTC Participants) and the records of DTC Participants (with respect
to interests of Persons other than DTC Participants).
Individual definitive Notes issued in exchange for the Restricted
Global Note will bear, and be subject to, such legend as the Company requires in
order to assure compliance with any applicable law (which requirement shall be
evidenced by delivery to the Trustee of a Company Order setting forth such
legend). The holder of a restricted individual definitive Note may transfer such
Note, subject to compliance with the provisions of the legend as provided in
paragraph (d) below. Upon the transfer, exchange or replacement of Notes bearing
the legend, or upon specific request for removal of the legend on a Note, the
Company will deliver and the Trustee will authenticate only Notes that bear such
legend, or will refuse to remove such legend, as the case may be, unless there
is delivered to the Company such satisfactory evidence, which may include an
opinion of counsel, as may reasonably be required by the Company, that neither
the legend nor the restrictions on transfer set forth therein are required to
ensure compliance with the provisions of the Securities Act. Before any
individual definitive Note may be transferred to a Person who takes delivery in
the form of an interest in any Global Note, the transferor will be required to
provide the Trustee with a Restricted Global Note Certification or Unrestricted
Global Note Certification, as the case may be.
(b) Principal Repayment; Currency. The Stated Maturity of the Notes is
December 18, 2002, provided, however, the Notes may be earlier redeemed at the
option of the Company as provided in paragraph (c) below. The principal of each
Note payable on its maturity date shall be paid against presentation and
surrender thereof at the Corporate Trust Office of the Trustee, located
initially at Two International Place, Boston, Massachusetts 02110, in such coin
or currency of the
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<PAGE>
United States of America as at the time of payment is legal tender for the
payment of public or private debts. The Company will not pay Additional Amounts
(as defined in the Indenture) on the Notes.
(c) Redemption at the Option of the Company. Prior to September 18,
2002, the Notes will be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 day's
notice to each Holder of Notes to be redeemed at its address appearing in the
Security Register, at a price equal to the sum of (i) the principal amount of
the Notes being redeemed, plus accrued and unpaid interest and Liquidated
Damages, if any, to but excluding the applicable redemption date and (ii) the
Make-Whole Amount. On and after September 18, 2002, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at a redemption price equal to
the sum of the principal amount of the Notes being redeemed plus accrued and
unpaid interest and Liquidated Damages, if any, to but excluding the applicable
redemption date.
(d) Restrictive Legends. Unless and until a Note is exchanged for an
Exchange Note in connection with an effective registration pursuant to the
Registration Rights Agreement, each Note shall bear the following legend on the
face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND SUCH SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO THE
COMPANY, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (5) IN A TRANSACTION OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY OTHER APPLICABLE LAW.
TRANSFERS AND EXCHANGES OF THIS SECURITY ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE.
Each Global Note, whether or not an Exchange Note, shall bear the
following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR
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<PAGE>
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Company shall be directed
to it at 400 Centre Street, Newton, Massachusetts 02158, Attention: David J.
Hegarty, President; notices to the Trustee shall be directed to it at Two
International Place, Boston, Massachusetts 02110, Attention: Corporate Trust
Department Re: Health and Retirement Properties Trust 6 3/4% Senior Notes due
December 18, 2002.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.1 In addition to the covenants of the Company set forth in
Article Ten of the Indenture, for the benefit of the holders of the Notes:
(a) Limitations on Incurrence of Debt.
(i) The Company will not, and will not permit any Subsidiary
to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum ("Adjusted Total
Assets") of (without duplication) (i) the Total Assets of the Company
and its Subsidiaries as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K, or the Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Securities
and Exchange Commission (or, if such filing is not permitted under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with
the Trustee) prior to the incurrence of such additional Debt and (ii)
the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Debt), by the Company
or any Subsidiary since the end of such calendar quarter, including
those proceeds obtained in connection with the incurrence of such
additional Debt.
(ii) In addition to the foregoing limitations on the
incurrence of Debt, the Company will not, and will not permit any
Subsidiary to, incur any Secured Debt if, immediately after giving
effect to the incurrence of such additional Secured Debt and the
application of the proceeds thereof, the aggregate principal amount of
all outstanding Secured Debt of the Company and its Subsidiaries on a
consolidated basis is greater than 40% of Adjusted Total Assets.
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<PAGE>
(iii) In addition to the foregoing limitations on the
Incurrence of Debt, the Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service for the four
consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than
1.5x, on a pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption
that (i) such Debt and any other Debt incurred by the Company and its
Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other
Debt, had occurred at the beginning of such period; (ii) the repayment
or retirement of any other Debt by the Company and its Subsidiaries
since the first date of such four-quarter period had been repaid or
retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt
during such period); (iii) in the case of Acquired Debt or Debt
incurred in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the
first day of such period with appropriate adjustments with respect to
such acquisition being included in such pro forma calculation; and (iv)
in the case of any acquisition or disposition by the Company or its
Subsidiaries of any asset or group of assets since the first day of
such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or
disposition being included in such pro forma calculation.
(b) Maintenance of Total Unencumbered Assets. The Company and its
Subsidiaries will maintain Total Unencumbered Assets of not less than 200% of
the aggregate outstanding principal amount of the Unsecured Debt of the Company
and its Subsidiaries on a consolidated basis.
(c) Applicability of Discharge, Defeasance and Covenant Defeasance
Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in
Article Fourteen of the Indenture will apply to the Notes.
ARTICLE 4
ADDITIONAL EVENTS OF DEFAULT
For purposes of this Supplemental Indenture and the Notes, in addition
to the Events of Default set forth in Section 5.1 of the Indenture, it shall
also constitute an "Event of Default" if an event of default under any bond,
debenture, note or other evidence of indebtedness of the Company (including an
event of default with respect to any other series of securities), or under any
mortgage, indenture or other instrument of the Company under which there may be
issued or by which there may be secured or evidenced any indebtedness of the
Company (or by any Subsidiary, the repayment of which the Company has guaranteed
or for which the Company is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall hereafter be created,
shall happen and shall result in an aggregate principal amount exceeding
$20,000,000 becoming or
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<PAGE>
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged,
or such acceleration having been rescinded or annulled, within a period of ten
days after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in principal amount of the outstanding Notes, a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder.
ARTICLE 5
EFFECTIVENESS
This Supplemental Indenture shall be effective for all purposes as of
the date and time this Supplemental Indenture has been executed and delivered by
the Company and the Trustee in accordance with Article Nine of the Indenture. As
supplemented hereby, the Indenture is hereby confirmed as being in full force
and effect.
ARTICLE 6
MISCELLANEOUS
Section 6.1 In the event any provision of this Supplemental Indenture
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof or any provision of the Indenture.
Section 6.2 To the extent that any terms of the Notes are inconsistent
with the terms of the Indenture, the terms of the Notes shall govern and
supersede such inconsistent terms.
Section 6.3 This Supplemental Indenture shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
Section 6.4 This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be executed as an instrument under seal in their
respective corporate names as of the date first above written.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ David J. Hegarty
Name: David J. Hegarty
Title: President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Robert L. Bice II
Name: Robert L. Bice II
Title: Vice President
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<PAGE>
EXHIBIT A
(Face of Note)
6 3/4% Senior Notes due December 18, 2002
No. $__________
HEALTH AND RETIREMENT PROPERTIES TRUST
promises to pay to _______________________________________ or registered
assigns, the principal sum of _____________________________________ Dollars on
December 18, 2002.
Interest Payment Dates: June 18 and December 18.
Record Dates: June 3 and December 3.
CUSIP Nos.: [422169AF9 (Rule 144A)
422169AG7 (Accredited Investor)
U40488 AC 9 (Regulation S)]
HEALTH AND RETIREMENT PROPERTIES
TRUST
By:____________________________________
Name:
Title:
[SEAL]
Dated:
This is one of the Notes referred to in the within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:
Authorized Signatory
A - 1
<PAGE>
(Back of Note)
HEALTH AND RETIREMENT PROPERTIES TRUST
6 3/4% Senior Notes due December 18, 2002
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. Health and Retirement Properties Trust, a Maryland real
estate investment trust (the "Company"), promises to pay interest on the
principal amount of this Note at the rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount of this
Note at the rate per annum of 6 3/4%. The Company will pay interest
semi-annually in arrears on June 18 and December 18 of each year, commencing on
June 18, 1998 or if any such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each an "Interest Payment
Date"), to Holders of record on the immediately preceding June 3 and December 3.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date. The Company 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 Company, however, may pay principal, premium, if
any, and interest by check payable in such money. It may mail an interest check
to a Holder's registered address.
3. Indenture. The Company issued the Notes under an Indenture and a
Supplemental Indenture, each dated as of December 18, 1997 (the "Indenture")
between the Company and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the
date of the Indenture. The Notes are subject to all such terms, and Holders of
the Notes are referred to the Indenture and such act for a statement of such
terms. The terms of the Indenture shall govern any inconsistencies between the
Indenture and the Notes. The Notes are unsecured general obligations of the
Company limited to $150,000,000 in aggregate principal amount.
4. Optional Redemption. Prior to September 18, 2002, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed, plus
accrued and unpaid interest and Liquidated Damages (as defined in the
Supplemental Indenture), if any, to but excluding the applicable redemption date
and (ii) the Make-
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<PAGE>
Whole Amount. On and after September 18, 2002, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed, plus accrued
and unpaid interest and Liquidated Damages, if any, to but excluding the
applicable redemption date.
As used herein the term "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 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 (as defined herein) (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.
As used herein the term "Reinvestment Rate" means 0.25% (twenty-five
one hundredths of one percent) plus the yield on treasury securities at constant
maturity under the heading "Week Ending" published in the Statistical Release
(as defined herein) 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 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.
As used herein the term "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 Supplemental Indenture, then such other reasonably comparable index
which shall be designated by the Company.
5. Mandatory Redemption. The Company shall not be required to make
sinking fund or redemption payments with respect to the Notes.
6. Notice of Redemption. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at its registered address. Notes may be redeemed in part
but only in whole multiples of $1,000, unless all of the Notes held by a Holder
are to be redeemed. On and after the redemption date, interest ceases to accrue
on Notes or portions of them called for redemption.
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<PAGE>
7. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $100,000 and integral multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee 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 exchange or register the transfer of any
Note or portion of a Note selected for redemption. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before the mailing of
a notice of redemption of Notes, or during the period between a record date and
the corresponding Interest Payment Date.
8. Defaults and Remedies. In case an Event of Default (as defined in
the Indenture) with respect to the Notes shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the provisions
provided in the Indenture.
9. Actions of Holders. The Indenture contains provisions permitting the
holders of not less than a majority of the aggregate principal amount of the
outstanding Notes, on behalf of the holders of all such Notes at a meeting duly
called and held as provided in the Indenture, to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in the Indenture to be made, given or taken by the holders of the
Notes, including without limitation, waiving (a) compliance by the Company with
certain provisions of the Indenture, and (b) certain past defaults under the
Indenture and their consequences. Any resolution passed or decision taken at any
meeting of the holders of the Notes in accordance with the provisions of the
Indenture shall be conclusive and binding upon such holders and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof
10. Persons Deemed Owners. The Company, the Trustee, and any agent of
the Company or the Trustee may deem and treat the Person in whose name this Note
is registered on the Security Register as its absolute owner for all purposes.
11. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
12. [Holders' Compliance with Registration Rights Agreement.1 Each
Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of December 18, 1997
among the Company and the Initial Purchaser (as defined therein) (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Initial Purchaser (as defined therein) to the extent provided
therein.]
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1 This paragraph should be deleted from Exchange Notes.
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<PAGE>
13. Governing Law. THE INTERNAL LAW OF THE COMMONWEALTH OF
MASSACHUSETTS SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
14. No Personal Liability. THE AMENDED AND RESTATED DECLARATION OF
TRUST OF THE COMPANY, DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME "HEALTH AND RETIREMENT PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER
THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY,
AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE
COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement. Request
may be made to:
Health and Retirement Properties Trust
400 Centre Street
Newton, MA 02158
Telecopier No.: (617) 332-2261
Attention: President
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<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note 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 face of this Note)
Signature Guarantee:
EXHIBIT 4.3
HEALTH AND RETIREMENT PROPERTIES TRUST
(a Maryland real estate investment trust)
$150,000,000 6 3/4% Senior Notes due December 18, 2002
REGISTRATION RIGHTS AGREEMENT
December 18, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1326
Ladies and Gentlemen:
Health and Retirement Properties Trust, a Maryland real estate
investment trust (the "Company"), proposes to issue and sell to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch" or the
"Initial Purchaser"), upon the terms set forth in a purchase agreement dated
December 15, 1997 (the "Purchase Agreement"), $150,000,000 of the Company's 6
3/4% Senior Notes due December 18, 2002 (the "Notes"). The Notes will be issued
under an indenture and supplemental indenture to be dated as of December 18,
1997 (together, the "Indenture") between the Company and State Street Bank and
Trust Company, as trustee (the "Trustee"). Execution of this Agreement is a
condition to Closing under the Purchase Agreement.
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, (i) for your benefit and (ii) for the benefit of the holders of the
Notes from time to time (each of the foregoing, a "Holder" and together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
<PAGE>
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in
Rule 405 of the Act or any successor rule thereunder.
"Closing Time" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means, in respect of the Notes, a like
principal amount of debt securities of the Company identical in all material
respects to, and entitled to substantially the same benefits of the Notes.
"Exchange Offer Registration Period" means the 120-day period
following the issuance of the Exchange Notes, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchaser) which is a broker-dealer electing to exchange Notes acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Notes.
"Final Offering Memorandum" has the meaning set forth in the
Purchase Agreement.
"Holder" means the Initial Purchaser, for so long as the
Initial Purchaser shall hold Registrable Notes, and each of its successors,
assigns and direct and indirect transferees who become holders of Registrable
Notes.
2
<PAGE>
"Indenture" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 8(a)
hereof.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" has the meaning set forth in the preamble hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes or the Exchange Notes, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registrable Notes" shall meant the Notes; provided, however,
that Notes shall cease to be Registrable Notes when (i) a Registration Statement
with respect to such Notes shall have been declared effective under the Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold pursuant to Rule 144(k) (or any similar
rule then in effect, but not Rule 144A) under the Act, (iii) such Notes shall
have ceased to be outstanding, (iv) the Notes shall have been exchanged for
Exchange Notes which may be transferred without restriction under the Act or (v)
the Company has completed the Registered Exchange Offer and the holder of such
Notes did not exchange such Notes for a like principal amount of Exchange Notes.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, with respect to the Notes, a like
principal amount of Exchange Notes, in exchange for the Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Notes or the Exchange Notes pursuant to the provisions of this Agreement, and
amendments and
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supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant
to Section 3 hereof.
"Shelf Registration Event" has the meaning set forth in
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Notes on an appropriate form under Rule
415 under the Act, or any similar rule that may be adopted by the Commission,
and amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Counsel" means Brown & Wood LLP or such other counsel
as shall be specified by the Majority Holders of securities included in the
relevant Registration Statement, the fees and expenses of which will be paid by
the Company pursuant to Section 5 hereof.
"Trustee" has the meaning set forth in the preamble hereto.
"Underwriter" means any underwriter of Registrable Notes in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Notes by
Exchanging Dealers. Unless prohibited by law or Commission policy: (a) The
Company shall prepare and, not later than 105 days following the Closing Time,
shall file with the Commission the Exchange Offer Registration Statement. The
Company shall use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of the
Closing Time.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall use its best efforts to cause the Registered
Exchange Offer to be consummated within the sooner to occur of 45 days after the
effective date of the Exchange Offer Registration Date or 180 days after the
Closing
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Time, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Registrable Notes for Exchange Notes (assuming that
such Holder is not an affiliate of the Company within the meaning of the Act,
acquires the Exchange Notes in the ordinary course of such Holder's business and
has no arrangements with any person to participate in the distribution (within
the meaning of the Act) of the Exchange Notes) to transfer such Exchange Notes
from and after their receipt without any limitations or restrictions under the
Act.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 business days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Registrable Notes validly
tendered and not withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Registrable Notes, Exchange Notes equal in
principal amount to the Registrable Notes of such Holder so accepted
for exchange therefor.
(e) The Initial Purchaser and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Notes received by such Exchanging Dealer pursuant to the
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Registered Exchange Offer in exchange for Registrable Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on
the cover of the Prospectus contained in the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, and in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus forming a part thereof by Exchanging Dealers in connection
with sales of Exchange Securities received pursuant to the Registered
Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Notes constituting any portion of its initial unsold allotment,
at the request of the Initial Purchaser, the Company shall issue and deliver to
the Initial Purchaser, in exchange for such Notes, a like principal amount of
Exchange Notes (provided that such Exchange Notes shall include legends with
respect to restrictions on transfer and shall be deemed Registrable Notes) and
the Company shall, starting on the date of effectiveness of the Exchange Offer
Registration Statement and ending on the close of business on the 120th day
following such date, make available as many copies of the Exchange Offer
Registration Statement prospectus, as amended or supplemented, as reasonably
requested by the Initial Purchaser. The Company shall seek to cause the CUSIP
Service Bureau to issue the same CUSIP number(s) for such securities as for the
Exchange Notes issued pursuant to the Registered Exchange Offer. The Initial
Purchaser agrees to promptly notify the Company in writing following the resale
of its initial allotment of Notes.
3. Shelf Registration. If, (i) because of any change in law or
currently prevailing interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) for any other reason the Registered
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Exchange Offer is not consummated within the sooner to occur of 45 days after
the effective date of the Exchange Offer Registration Statement or 180 days
after the Closing Time, or (iii) in the case of any Holder that participates in
the Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Notes on the date of the exchange (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the Act or
as a broker-dealer) (it being understood that, for purposes of this Section 3,
(x) the requirement that the Initial Purchaser deliver a Prospectus containing
the information required by Items 507 and/or 508 of Regulation S-K under the Act
in connection with sales of Exchange Notes acquired in exchange for such Notes
shall result in such Exchange Notes being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Notes acquired in the Registered Exchange Offer in exchange
for Notes acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Notes being not "freely tradeable")
(the events described in clauses (i), (ii) and (iii) of this paragraph are each
referred to herein as a "Shelf Registration Event"), the following provisions
shall apply:
(a) The Company shall promptly deliver to the Holders written
notice of a Shelf Registration Event and, as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this Section
3), file with the Commission and thereafter use its reasonable best efforts to
cause to be declared effective under the Act, a Shelf Registration Statement
relating to the offer and sale of the Registrable Notes by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement; provided, however, that with
respect to Exchange Notes received by the Initial Purchaser in exchange for
Notes constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Regis tration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years after the effective date of the Shelf Registration Statement (or, the
shorter period
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<PAGE>
provided under Rule 144(k)) or such shorter period that will terminate when all
the Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior
to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and any Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and the Company shall, if reasonably
requested, promptly incorporate in such Registration Statement, such
information and comments as the Initial Purchaser reasonably agrees
with the Company and its counsel should be included therein provided
that the Company shall not be required to take any action under this
Section 4(a) that is not in the reasonable opinion of counsel for the
Company in compliance with applicable law.
(b) The Company shall ensure that subject to Section 4(k), (i)
any Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto complies
in all material respects with the Act, (ii) any Registration Statement
and any amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is
required, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchaser and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission and when
a Registration Statement or any post-effective amendment
thereto has become effective; and
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(ii) of any request by the Commission for
amendments or supplements to a Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company shall advise the Initial Purchaser and, in the
case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange
Offer Registration Statement, any Exchanging Dealer which has
provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by you or
any such Holder or Exchanging Dealer, confirm such advice in
writing:
(i) of the Company becoming aware of the issuance
by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
(d) Subject to Section 4(k), the Company shall use its
reasonable best efforts to prevent the issuance or obtain the
withdrawal of any order suspending the effectiveness or use of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(f) Subject to Section 4(k), the Company shall, during the
Shelf Registration Period, as promptly as is reasonably practicable
deliver to each Holder of securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf
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<PAGE>
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and subject to Section 4(k), the Company
consents to the use of the Prospectus or any amendment or supplement
thereto as to which no notice has been given pursuant to paragraph
4(c)(2) by each of the selling Holders of securities in connection with
the offering and sale of the securities covered by the Prospectus or
any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits (including those incorporated by
reference).
(h) Subject to Section 4(k), the Company shall, during the
Exchange Offer Registration Period, promptly deliver to each Exchanging
Dealer, without charge, as many copies of the Prospectus included in
such Exchange Offer Registration Statement and any amendment or
supplement thereto as such Exchanging Dealer may reasonably request for
delivery by such Exchanging Dealer in connection with a sale of
Exchange Notes received by it pursuant to the Registered Exchange
Offer; and subject to Section 4(k), the Company consents to the use of
the Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) by any such
Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or the
effectiveness of a Registration Statement, the Company shall, if
required by applicable law, register or qualify or cooperate with the
Holders of securities included therein and their respective counsel in
connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the
offer and sale in such United States jurisdictions of the securities
covered by such Registration Statement; provided, however, that the
Company will not be required to (i) qualify generally to do business or
as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 4(i), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof so
subject or (iii) subject
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itself to taxation in any jurisdiction where it is not otherwise
subject.
(j) Unless the applicable securities shall be in book-entry
only form, the Company shall cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
Registrable Notes pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs (c)(1)(ii) or (c)(2) above, the Company agrees to notify the
Initial Purchaser, and in the case of a Shelf Registration Statement,
the Holders of securities covered thereby, to suspend use of the
Prospectus and the Company shall prepare, using its reasonable best
efforts to do so as soon as possible, a post-effective amendment to any
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and the Initial Purchaser, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby,
shall suspend use of such Prospectus until the Company has amended or
supplemented such Prospectus so that such Prospectus does not contain
any such untrue statement or omission.
(l) The Company shall use its reasonable best efforts to cause
The Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Registrable Notes, any
designation indicating that such Registrable Notes are "restricted
securities," which efforts shall include delivery to DTC of a letter
executed by the Company substantially in the form of Annex E hereto and
(ii) any other stop or restriction on DTC's system with respect to such
Registrable Notes. In the event the Company is unable to cause DTC to
take the actions described in the immediately preceding sentence, the
Company shall take such actions as the Initial Purchaser may reasonably
request to provide, as soon as practicable, a CUSIP number for the
Registrable Notes registered under such Registration Statement and to
cause such CUSIP numbers to be assigned to such Registrable Notes (or
to the maximum
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<PAGE>
aggregate principal amount of such Registrable Notes to which such
number(s) may be assigned). Upon compliance with the foregoing
requirements of this Section 4(l), the Company shall provide the
Trustee with printed certificates for the Registrable Notes, in a form
eligible for deposit with DTC.
(m) The Company shall use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Act.
(n) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939 (the "Trust Indenture Act") in a
timely manner.
(o) The Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding such Holder and the distribution of
such securities by such Holder as the Company may from time to time
reasonably require for inclusion in such Registration Statement and
securities of a Holder which does not provide information necessary for
inclusion in such Registration Statement may be omitted from any Shelf
Registration Statement.
(p) The Company shall, if reasonably requested, and in no
event more than three times, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree with the Company and its counsel
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment provided that the Company shall not be
required to take any action under this Section 4(p) that is not in the
reasonable opinion of counsel for the Company in compliance with
applicable law.
(q) In the case of any Shelf Registration Statement, the
Company shall enter into such customary agreements (including
underwriting agreements) and take all other appropriate and reasonably
required actions in connection therewith in order to expedite or
facilitate the registration or the disposition of the Registrable Notes
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and
procedures no less favorable than those set
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forth in Section 6 (or such other provisions and procedures acceptable
to the Company, the Holders of a majority in aggregate principal amount
of Registrable Notes and the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, subject to their
acceptance of the provisions of this Section 4(r), any underwriter
participating in any distribution pursuant to such Registration
Statement, and any Special Counsel, accountant or other agent retained
by the Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries as shall reasonably be required in
connection with the discharge of their due diligence obligations; (ii)
cause the Company's officers, directors and employees and any relevant
trustee to supply all relevant information reasonably requested by the
Holders or any such underwriter, Special Counsel, accountant or agent
in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that, in the
case of clause (i) and (ii) above, any information that is designated
in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the
Holders and any such under writer, Special Counsel, accountant or
agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to
the public generally or through a third party without an accompanying
obligation of confidentiality; and provided further, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Holders and the other parties entitled thereto by the
Special Counsel and other parties; (iii) make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in secondary offerings and covering
such matters as are customarily covered in representations and
warranties requested in secondary offerings; (iv) obtain opinions of
counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering such matters and with
such exceptions as are customarily covered or taken in opinions
requested in secondary offerings; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary
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of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling
Holder of securities registered thereunder if such Holders shall have
provided to such accountants customary engagement letters relating to
the receipt of "cold comfort" letters by selling Holders and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
secondary offerings; and (vi) deliver such documents and certificates
as may be reasonably requested by the Majority Holders and the Managing
Underwriters, if any, or Special Counsel including those to evidence
compliance with Section 4(k) and with conditions customarily contained
in the underwriting agreement entered into by the Company. The
foregoing actions set forth in clauses (iii) and (v) of this Section
4(r) shall be performed at the effectiveness of such Registration
Statement and those set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(r) shall be performed at each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) In the case of any Exchange Offer Registration Statement,
if requested by the Initial Purchaser, the Company shall (i) make
reasonably available for inspection by the Initial Purchaser, subject
to its acceptance of the provisions of this Section 4(s), and any
Special Counsel, accountant or other agent retained by the Initial
Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as shall reasonably be required in connection with the discharge of
their due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all relevant
information reasonably requested by the Initial Purchaser or any such
Special Counsel, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of clause (i) and
(ii) above, any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Initial Purchaser and any
such Special Counsel, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchaser and other parties entitled thereto by the Special Counsel and
other parties; (iii) make such
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<PAGE>
representations and warranties to the Initial Purchaser, in form,
substance and scope as are customarily made by issuers to underwriters
in secondary offerings and covering such matters as are customarily
covered in representations and warranties requested in secondary
offerings; and (iv) deliver such documents and certificates as may be
reasonably requested by the Initial Purchaser or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements. The foregoing actions
set forth in clauses (iii) and (iv) of this Section 4(s) shall be
performed, if requested by the Initial Purchaser, at the closing of the
Registered Exchange Offer and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of the Special
Counsel designated in connection therewith, and, in the case of any Exchange
Offer Registration Statement, will reimburse the Initial Purchaser for the
reasonable fees and disbursements of the Special Counsel acting in connection
therewith; provided, however, that each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Notes pursuant to a Shelf Registration Statement.
6. Indemnification.
(a) Indemnification of Initial Purchaser, Holders and Others. In
connection with any Registration Statement, the Company agrees to indemnify and
hold harmless the Initial Purchaser, each Holder, each underwriter who
participates in an offering of the Registrable Notes, each Exchanging Dealer and
each person, if any, who controls any of such parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, including all
documents incorporated therein by reference, or any preliminary
Prospectus or any Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
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light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii)against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Holder,
such Exchanging Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 6(c) hereof)), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such
Holder, underwriter or Exchanging Dealer expressly for use in any
Registration Statement or any amendment thereof, any preliminary
Prospectus or any Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto);
and provided, further, that the foregoing indemnity agreement with respect to
any preliminary Prospectus shall not inure to the benefit of such Holder,
underwriter or Exchanging Dealer, or the benefit of any person controlling any
of such parties, if a copy of the Prospectus (excluding documents incorporated
or deemed to be incorporated by reference therein) was not sent or given by or
on behalf of any of such parties to such person asserting any such losses,
claims, damages or liabilities at or prior to the written confirmation of the
sale of such Notes to such person, if required by law so to have been delivered,
and if the Prospectus (as then amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or expense.
(b) Indemnification of Company, Trustees and Officers. The Initial
Purchaser and each Holder, underwriter or Exchanging
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Dealer severally agrees to indemnify and hold harmless the Company, its
trustees, its officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any Registration Statement or any amendment thereof, any
preliminary Prospectus or any Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Holder, underwriter or Exchanging Dealer expressly for use in such Registration
Statement, preliminary Prospectus or Prospectus; provided, however, that in the
case of a Shelf Registration Statement, no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Notes pursuant to such Shelf Registration
Statement.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by such parties, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such
17
<PAGE>
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Initial Purchaser, each Holder, each underwriter and each Exchanging Dealer
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the Initial
Purchaser, each Holder, each underwriter and each Exchanging Dealer on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Initial Purchaser, each Holder, each underwriter and each Exchanging
Dealer and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7.
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<PAGE>
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Notes purchased by it were resold to the public
exceeds the amount of any damages which the Initial Purchaser 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.
For purposes of this Section 7, each person, if any, who controls the
Initial Purchaser, each Holder, each underwriter or each Exchanging Dealer
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as any of such parties, and each
trustee of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company.
8. Liquidated Damages Under Certain Circumstances. (a)
Liquidated damages ("Liquidated Damages") shall become payable in respect of
Registrable Notes as follows if any of the following events occur (each such
event in clauses (i) through (vi) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 105th day following the
Closing Time;
(ii) if the Exchange Offer Registration Statement is not
declared effective on or prior to the 150th day following the Closing
Time;
(iii) if the Registered Exchange Offer is not consummated
within the sooner to occur of 45 days after the effective date of the
Exchange Offer Registration Statement or 180 days after the Closing
Time;
19
<PAGE>
(iv) if the Shelf Registration Statement is not filed with
the Commission on or prior to the 60th day after such filing obligation
arises;
(v) if the Shelf Registration Statement is not declared
effective on or prior to the 45th day after it is filed; or
(vi) if after the Exchange Offer Registration Statement or
Shelf Registration is declared effective, (A) such Exchange Offer
Registration Statement or Shelf Registration Statement ceases to be
effective prior to the end of the Exchange Offer Registration Period or
Shelf Registration Period (except as permitted in paragraph (b) of this
Section 8); (B) such Exchange Offer Registration Statement or Shelf
Registration Statement or the related Prospectus ceases to be useable
in connection with resales of Registrable Notes covered by such
Exchange Offer Registration Statement or Shelf Registration Statement
prior to the end of the Exchange Offer Registration Period or Shelf
Registration Period (except as permitted in paragraph (b) of this
Section 8) because (1) the Company determines that any event occurs as
a result of which the related Prospectus forming part of such Exchange
Offer Registration Statement or Shelf Registration Statement would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, (2) the
Company determines that it shall be necessary to amend such Exchange
Offer Registration Statement or Shelf Registration Statement, or
supplement the related Prospectus, to comply with the Act or the
Exchange Act or the rules thereunder, or (3) the Company determines
that it is advisable to suspend use of the Prospectus for a discrete
period of time due to pending material corporate developments or
similar material events that have not yet been publicly disclosed and
as to which the Company believes public disclosure will be prejudicial
to the Company.
Liquidated Damages shall accrue on the Registrable Notes over
and above the interest rate set forth in the title to the Registrable Notes
following the occurrence of a Registration Default set forth in clauses (i)
through (vi) above from and including the next day following each such
Registration Default, in each case at a rate equal to 0.50% per annum; provided,
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (i) or (iv)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of clause (ii) or (v) above), (3)
upon the
20
<PAGE>
exchange of Notes pursuant to the Exchange Offer Registration Statement (in the
case of clause (iii) above), or (4) at such time as the Exchange Offer
Registration Statement or a Shelf Registration Statement which had ceased to
remain effective or usable again becomes effective and usable (in the case of
clause (vi) above), Liquidated Damages on the unpaid principal amount of the
Notes, as a result of such Registration Default, shall cease to accrue.
(b) A Registration Default referred to in Section 8(a)(vi)
shall be deemed not to have occurred and be continuing in relation to the
Exchange Offer Registration Statement or Shelf Registration Statement or the
related Prospectus if (i) such Registration Default has occurred solely as a
result of (x) the filing of a post-effective amendment to such Exchange Offer
Registration Statement or Shelf Registration Statement to incorporate annual
audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (y) in the case of the
Exchange Offer Registration Statement, to the extent offers or sales thereunder
are not permitted to be made in accordance with Instruction 1 to Form 8-K if the
Company has timely reported a business acquisition pursuant to Item 2 of Form
8-K, but financial statements required to be filed pursuant to Item 7 of Form
8-K with respect to such business acquisition have not been filed by the Company
and are not at the time required to be filed in accordance with such Item and
such Instruction, or (z) the occurrence of other material events or developments
with respect to the Company that would need to be described in such Exchange
Offer Registration Statement or Shelf Registration Statement or the related
Prospectus and (ii) in the case of clause (z), the Company is proceeding
promptly and in good faith to amend or supplement such Exchange Offer
Registration Statement or Shelf Registration Statement and related Prospectus to
describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the
foregoing paragraphs will be payable in cash on June 18 and December 18 of each
year to the holders of record on the preceding May 3 and November 3,
respectively.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date here of, enter
into, any agreement with respect to the Notes that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
21
<PAGE>
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Registrable Notes; provided, however, that, with respect to
any matter that affects the rights of the Initial Purchaser hereunder, the
Company shall obtain the written consent of the Initial Purchaser.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Notes are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Holders of a
majority of the Registrable Notes, determined on the basis of Registrable Notes
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 8(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Trustee under the Indenture, with a copy in
like manner to Merrill Lynch;
(2) if to the Initial Purchaser, initially at the
address set forth in the Purchase Agreement; and
(3) if to the Company, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchaser or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Notes. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of
22
<PAGE>
Registrable Notes and any such Holder may enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or their respective Affiliates (other than subsequent Holders of
Registrable Notes if such subsequent Holders are deemed to be Affiliates solely
by reason of their holdings of such Notes or Exchange Notes) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED OCTOBER 9,
1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"),
IS DULY ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND AND PROVIDES THAT THE NAME "HEALTH AND RETIREMENT
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
23
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement among the Company and you.
Very truly yours,
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ David J. Hegarty
Name: David J. Hegarty
Title: President
Accepted, December 18, 1997
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Tjarda van S. Claggett
Name: Tjarda van S. Claggett
Title: Director
24
<PAGE>
ANNEX A
Annex A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed for a period of at least 120 days after the
consummation of the Exchange Offer to make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
<PAGE>
ANNEX B
Annex B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
<PAGE>
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company has
agreed for a period of at least 120 days after the consummation of the Exchange
Offer to make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
, 199 , all dealers effecting transactions in the Exchange Notes may
be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Act and any profit of any such
resale of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of at least 120 days after the consummation of
the Exchange Offer, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer
<PAGE>
(including the expenses of any Special Counsel for the holders of the Notes)
other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Notes participating in the Exchange Offer
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
2
<PAGE>
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:__________________________________________
Address: ______________________________________
______________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Notes, it represents
that the Notes to be exchanged for Exchange Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Health and Retirement Properties Trust
400 Centre Street
Newton, MA 02158
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: $150,000,000 6 3/4% Senior Notes due December 18, 2002
of Health and Retirement Properties Trust
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with regard to all of the securities referenced above.
Accordingly, there is no longer any restriction as to whom such securities may
be sold and any restrictions on the CUSIP designations are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to these issues.
As always, please do not hesitate to call if we can be of
further assistance.
HEALTH AND RETIREMENT PROPERTIES TRUST
by:
Authorized Officer
Exhibit 99.1
[Health and Retirement Properties Trust Letterhead]
December 18, 1997
FOR IMMEDIATE RELEASE For more information
Contact:
David J. Hegarty, President or
Ajay Saini, Treasurer
(617) 332-3990
Health and Retirement Properties Trust Announces
Private Placement of $150 Million 6 3/4% Senior Notes
------------------------------------------------------------------------------
Newton, MA: Health and Retirement Properties Trust (NYSE:HRP) today
announced that is has completed a private placement of $150 million of 6 3/4%
Senior Notes due in December 2002. The net proceeds of the placement were used
to reduce outstanding borrowings under HRP's revolving line of credit which were
at a floating interest rate.
These Senior Notes have not been registered under the Securities Act of
1933, as amended and may not be offered or sold in the United States absent
registration or an applicable exemption from registration requirements.
Health and Retirement Properties Trust is a real estate investment
trust headquartered in Newton, Massachusetts which primarily owns nursing homes,
retirement living properties, medical office buildings and clinics. HRP
currently has approximately $2.1 billion of real estate investments located
throughout the United States and an equity market capitalization of
approximately $2 billion.
(end)
