EXHIBIT 10.40
EXECUTION COPY
________________________________________________________________________________
FISCAL AGENCY AGREEMENT
between
HEALTH CARE PROPERTY INVESTORS, INC.,
Issuer
and
CHEMICAL BANK,
Fiscal Agent
__________________________
Dated as of
November 8, 1993
__________________________
U.S. $100,000,000
6% Convertible Subordinated Notes Due 2000
________________________________________________________________________________
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FISCAL AGENCY AGREEMENT dated as of November 8, 1993 between HEALTH
CARE PROPERTY INVESTORS, INC., a corporation duly organized and existing
under the laws of the State of Maryland (the "Issuer"), and CHEMICAL BANK,
a banking corporation incorporated under the laws of the State of New York.
1. Pursuant to a Subscription Agreement dated October 25, 1993
(the "Subscription Agreement") between the Issuer and Merrill Lynch
International Limited, Alex Brown & Sons Incorporated and Natwest Securities
Limited (all of the foregoing being hereinafter referred to as the "Managers"),
the Issuer has agreed to issue U.S. $100,000,000 principal amount of its 6%
Convertible Subordinated Notes due 2000 (the "Notes"), which amount includes
$13,000,000 aggregate principal amount of Notes issued pursuant to the over-
allotment option granted to the Managers pursuant to Clause 1(a) of the
Subscription Agreement.
2. The Issuer hereby appoints Chemical Bank, at present having
its Corporate Trust Office (as hereinafter defined) at 450 West 33rd Street, New
York, New York 10001, as the fiscal agent in respect of the Notes and, at its
address set forth in Section 5(a), as the agent of the Issuer for the purpose of
keeping registration books with respect to the Registered Notes (as hereinafter
defined) in accordance with Section 5, all upon the terms and subject to the
conditions set forth herein and in the Notes. Chemical Bank, and, subject to
Section 11, any successor fiscal agent are herein called the "Fiscal Agent." The
Fiscal Agent shall have the powers and authority granted to and conferred upon
it herein and in the Notes.
3. (a) Except as provided in Sections 4(a) and 4(e), the Notes will
be issued in bearer form, the face of which being substantially in the form of
Exhibit A-1 hereto ("Bearer Notes"), with attached interest coupons, the face of
which being substantially in the form of Exhibit C hereto ("Coupons"), and in
fully registered form, the face of which being substantially in the form of
Exhibit A-2 hereto ("Registered Notes"). All Notes (other than the Global Note
(as defined in Section 4(a)) shall contain the Terms and Conditions ("Terms"),
substantially as set forth in Exhibit B hereto, and the conversion notice form,
substantially in the form of Exhibit G. The authorized denominations of the
Notes shall be as provided in the Terms and in this Agreement. As used herein,
"Holder" of a Note and "Noteholder," or the "Holder" of a Coupon, as the case
may be, means (i) in the case of a Bearer Note or Coupon, the bearer thereof and
(ii) in the case of a Registered Note, the registered owner thereof as shown in
the Note Register (as hereinafter defined); provided that, for so long as any
Notes are represented by the Global Note, the term "Holder" and "Noteholder,"
when used in reference to such Notes, shall mean, unless the context shall
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otherwise require, each person who is at the time shown on the records of
Euroclear or Cedel (as hereinafter defined), as the case may be, as the owner of
a particular principal amount of such Notes (with respect to which any
certificate or other documents issued by Euroclear or Cedel, as the case may be,
as to the principal amount of such Notes held for the account of any such person
shall be conclusive and binding for such purpose.) As used in this Agreement and
the Securities, the term "person" means, unless the context shall otherwise
require, any individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
(b) Bearer Notes, the Global Note and the initial DTC Note (as
defined in Section 4(e)) each shall be dated November 8, 1993. Each Registered
Note shall be dated the date of its authentication.
(c) The Notes (including the Global Note and the DTC Notes) and
Coupons shall be executed on behalf of the Issuer by two officers of the Issuer
including its President or any Vice President, and its Treasurer, any Assistant
Treasurer, its Secretary or any Assistant Secretary, so long as such persons
shall be duly authorized at the time of such execution (any such person listed
above being referred to as an "Authorized Officer" and any certificate signed by
such authorized officer and delivered to the Fiscal Agent being referred to as
an "Officer's Certificate"). Any such signature may be in facsimile and may be
imprinted or otherwise reproduced. In case any person who shall have executed
any Note (including the Global Note or any DTC Note) or Coupon shall cease to
hold the office by virtue of which such person so executed such Note or Coupon
before such Note (or the Note to which such Coupon appertained) shall be
authenticated and delivered by the Fiscal Agent or disposed of by the Issuer,
such Note may nevertheless be authenticated and delivered or disposed of as
though such person had not ceased to be an Authorized Officer; and any Note or
Coupon may be executed on behalf of the Issuer by such person or persons as, at
the date of execution thereof, shall be duly authorized by the Issuer for such
purpose, although at the date hereof any such person was not an Authorized
Officer. Any such signature may be that of a duly authorized attorney-in-fact.
(d) The Fiscal Agent is authorized, upon receipt of the Notes
executed on behalf of the Issuer, to authenticate Notes in the aggregate
principal amount of U.S. $100,000,000 and to deliver said Notes to or upon the
order of the Issuer signed by an Authorized Officer. Thereafter, the Fiscal
Agent is authorized to authenticate and deliver Notes in accordance with the
provisions set forth herein and in the Notes. Any request for authentication of
Notes pursuant to paragraph 9(a) of the Terms shall be in writing and signed by
an Authorized Officer of the Issuer.
4. (a) The Notes (other than the DTC Notes issued pursuant to Section
4(e) hereof) will initially be issued in the form of a single temporary global
Note (the "Global Note") in bearer form, without interest coupons or conversion
rights, substantially in the form of Exhibit D hereto. The Global Note shall be
authenticated by the Fiscal Agent upon the same conditions, in substantially the
same manner and with the same effect as the definitive Notes. Such Global Note
shall be delivered to a common depository (the "Common Depositary") in London
for Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") on the date of
payment and delivery of the Notes, being November 8, 1993 (the "Settlement
Date"). Ownership interests in the Global Notes held by the Common Depositary
will be shown on, and transfers thereof will be effected only through, records
maintained by Euroclear and Cedel and their respective participants.
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(b) For purposes of this Agreement, "Exchange Date" shall mean the
date 40 days after the Settlement Date. For purposes of this Agreement, the term
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction. Without unnecessary delay, but in any event not later than
the Exchange Date, the Issuer will execute and deliver to the Fiscal Agent at
its London office definitive Notes in the aggregate principal amount of the
Global Note, to be issued in exchange for the Global Note. All Bearer Notes so
issued and delivered will have Coupons attached. The Global Note may be
exchanged for an equal aggregate principal amount of definitive Notes only on or
after the Exchange Date. Upon any demand for exchange for definitive Notes in
accordance with this paragraph, the Issuer shall cause the Fiscal Agent to
authenticate and deliver (at an office or agency outside the United States in
the case of Bearer Notes) the definitive Notes to the Holder, only upon
presentation to the Fiscal Agent of a written statement substantially in the
form of Exhibit E hereto with respect to the Global Note or portion thereof
being exchanged, signed by Euroclear or Cedel, to the effect that it has
received in writing, by tested telex or by electronic transmission the
certification substantially in the form of Exhibit F hereto, such latter
certification being dated no earlier than 15 days prior to the Exchange Date and
signed by or on behalf of the person appearing in its records as the beneficial
owner of the Global Note or portion thereof being exchanged. Upon receipt of
such certification the Fiscal Agent shall cause the Global Note to be endorsed
in accordance with paragraph (d) below. Any exchange as provided in this Section
4(b) shall be made free of charge to the Holders and the beneficial owners of
the Global Note and to the Holders and the beneficial owners of the definitive
Notes issued in such exchange, except that a person receiving definitive Notes
must bear the cost of insurance, postage, transportation and the like in the
event that such person does not receive such definitive Notes in person at the
offices of Euroclear or Cedel.
(c) The delivery to the Fiscal Agent by Euroclear or Cedel of any
written statement referred to above may be relied upon by the Issuer and the
Fiscal Agent as conclusive evidence that a corresponding certification or
certifications has or have been delivered to Euroclear or Cedel, as the case may
be, pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global Note for
a definitive Note or Notes, the Global Note shall be endorsed by or on behalf of
the Fiscal Agent to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of such definitive Note or Notes. Until
so exchanged in full, the Global Note shall in all respects be entitled to the
same benefits under this Agreement as definitive Notes authenticated and
delivered hereunder, except that the beneficial owners of such Global Note shall
not be entitled to receive payments of interest on the Notes or to convert the
Global Note into Common Stock (as defined in Section 14(a)) or any other
security, cash or other property, until they have exchanged their beneficial
interests in such Global Note for definitive Notes.
(e) Notes sold to subscribers in the United States will be sold only
to "qualified institutional buyers" ("QIBs") within the meaning of Rule 144A
promulgated under the Securities Act of 1933, as amended (the "1933 Act"),
approved by Merrill Lynch,
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Pierce, Fenner & Smith Incorporated, as placement agent of the Notes sold in the
United States (the "Placement Agent"), or by the Issuer in transactions exempt
from registration under the 1933 Act. Any such Notes shall be issued initially
in the form of one or more definitive global Notes (each a "DTC Note")
registered in the name of Cede & Co. (or another nominee of The Depository Trust
Company (together with any successor depository for the Notes, "DTC")) as
nominee of the DTC. A DTC Note shall be substantially in the form set forth in
Exhibit H hereto, with the legend required by Section 4(g) and such other
notations, legends or endorsements as may be required by law, stock exchange
rule or common usage. Ownership interests in a DTC Note registered in the name
of Cede & Co. (or another nominee of DTC) will be represented through financial
institutions acting on behalf of the beneficial owners as direct or indirect
participants of DTC. Ownership interests in DTC Notes may only be held by QIBs.
Holders of beneficial interests in a DTC Note may obtain definitive Registered
Notes (but not definitive Bearer Notes), subject to certain restrictions on
transfer as provided in Section 5(h) (all DTC Notes, all Registered Notes issued
in exchange for interests in a DTC Note, and all Notes issued upon registration
of transfer or exchange of Registered Notes so issued, are hereinafter called
"Restricted Notes," provided that a Note shall cease to be a Restricted Note on
the Resale Restriction Termination Date (as defined in Section 4(g) below) with
respect to such Note or on any earlier date on which the Issuer shall, in its
sole and absolute discretion, waive the transfer restrictions applicable to such
Note). Restricted Notes (other than DTC Notes) issued pursuant to this Section
4(e) and Section 5(h) shall be substantially in the form of Exhibit A-2 with the
legend required by Section 4(g) and such other notations, legends or
endorsements as may be required by law, stock exchange rule or common usage.
Restricted Notes shall be issuable in minimum denominations of $250,000 and
integral multiples of $1,000 in excess thereof.
(f) If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as a depositary for the Notes, the Issuer shall appoint a
successor depositary and, if a successor depositary is not so appointed within
90 calendar days after the Issuer receives notice or becomes aware of such
unwillingness or ineligibility, the Issuer will issue Notes (which shall be
Restricted Notes if so required by this Agreement) in definitive form in
exchange for interests in the DTC Notes
(g) All Restricted Notes and each share certificate of Common Stock
of the Issuer issued upon the conversion of a Restricted Note pursuant to
Section 14 hereof, if any, and all Notes issued upon registration of transfer of
all, or any part of, or in exchange for, such Restricted Notes shall be subject
to the restrictions on transfers as set forth in Section 5(h) hereof and in the
following legend required to be set forth, in substantially the following form,
on the face of such Restricted Notes and on the share certificates of Common
Stock issued upon conversion thereof; provided that the legend on Restricted
Notes which are DTC Notes may be appropriately modified to permit a QIB holding
an interest in a DTC Note to transfer such interest to another QIB who also will
hold such interest through DTC without the necessity of delivering a Transfer
Certificate (as defined in Section 5(h) hereof), but only if such transfer is
effected through DTC without the issuance of a definitive Note:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
EXCHANGE DATE (AS DEFINED IN THE FISCAL AGENCY AGREEMENT REFERRED TO
HEREIN) AND THE LAST DATE ON WHICH THE ISSUER OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 PROMULGATED UNDER THE 1933 ACT) OF THE ISSUER WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY TO A
PERSON THAT IS NOT AN "AFFILIATE" OR ACTING ON BEHALF OF AN "AFFILIATE" OF
THE ISSUER AND ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (C) TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE 1933 ACT, (E) TO
AN INSTITUTIONAL INVESTOR WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(l), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER
THE 1933 ACT THAT IS ACQUIRING THE SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION IN VIOLATION OF THE 1933 ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
(SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF A TRANSFEREE'S PROPERTY BE AT ALL TIMES WITHIN ITS CONTROL),
AND SUBJECT TO THE ISSUER'S, THE REGISTRAR'S AND ANY TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE IN THE FORM APPEARING ON
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THE REVERSE OF THIS SECURITY IS DELIVERED BY THE TRANSFEROR TO THE
REGISTRAR OR A TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
5. (a) Subject to such reasonable regulations as it may prescribe,
the Issuer will keep books (the "Note Register") for the exchange, registration
and registration of transfer of Registered Notes (including the Restricted
Notes) at the office of the Fiscal Agent at 450 West 33rd Street, New York, New
York 10001, the Fiscal Agent acting as its agent for such purposes. The Issuer
hereby appoints the Fiscal Agent, acting through its said office, as the
registrar with respect to the Registered Notes, upon the terms and subject to
the conditions set forth herein and in the Notes. The Fiscal Agent, acting as
registrar and any successor registrar or co-registrar appointed pursuant to
paragraph 3(c) of the Terms are herein called, collectively, the "Registrar."
The Fiscal Agent will keep a record of all Bearer Notes and will make such
record available for inspection upon the request of the Issuer. Included in such
books and records will be notations as to whether such Bearer Notes have been
redeemed, or otherwise paid or cancelled, and, in the case of mutilated,
defaced, destroyed, stolen or lost Notes, whether such Notes have been replaced.
In the case of the replacement of any of the Notes, the Fiscal Agent or the
Registrar, as the case may be, will keep a record of the Note so replaced, and
the Note issued in replacement thereof. In the case of the cancellation of any
of the Notes, the Fiscal Agent or the Registrar, as the case may be, will keep a
record of the Note so cancelled and the date on which such Note was cancelled.
(b) Subject to the provisions of Section 5(h), the Holder of any
Registered Note may transfer the same in whole or in part in the amount of U.S.
$1,000 or an integral multiple thereof, by surrendering such Note at the office
of the Registrar or at the office of any transfer agent (each, a "Transfer
Agent") that may be appointed by the Issuer, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the
Registrar or any such Transfer Agent, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing. In exchange for any
Registered Note properly presented for transfer, the Fiscal Agent shall promptly
authenticate and deliver at the office of the Registrar or at the office of any
Transfer Agent, as the case may be, to the transferee or send by mail (at the
risk of the transferee) to such address as the transferee may request, a
Registered Note or Notes, as the case may require, registered in the name of
such transferee, for the same aggregate principal amount as was transferred. In
the case of the transfer of any Registered Note in part, the Fiscal Agent shall
also promptly authenticate and deliver at the office of the Registrar or at the
office of any Transfer Agent, as the case may be, to the transferor or send by
mail (at the risk of the transferor) to such address as the transferor may
request, a Registered Note or Notes, as the case may require, registered in the
name of the transferor, for the same aggregate principal amount as was not
transferred.
(c) At the option of the Holder on request confirmed in writing and
subject to applicable laws and regulations, a Bearer Note or Notes may at any
time after the Exchange Date be presented for exchange for a Registered Note or
Notes of an equal aggregate principal amount in authorized denominations at the
office of the Registrar or at
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the office of any other Transfer Agent that may be appointed by the Issuer.
Registered Notes (including the DTC Notes, the Restricted Notes and Registered
Notes received in exchange for Bearer Notes) shall not be exchanged for Bearer
Notes. Whenever one or more Bearer Notes shall be surrendered at said office of
the Registrar or any Transfer Agent for exchange, together with a written
request for the exchange, the Fiscal Agent shall promptly authenticate and
deliver (directly or through the Registrar or a Transfer Agent, as the case may
be) a Registered Note or Notes for an equal aggregate principal amount in such
authorized denominations as may be requested. Registered Notes shall be
delivered, at the option of the Holder, at the office of the Registrar or at the
office of any Transfer Agent, or sent by mail (at the risk of the Holder) to
such address as may be specified by the Holder in the request for exchange. Each
Bearer Note surrendered pursuant to this Section 5 shall have attached thereto
all unmatured Coupons, provided that any Bearer Note so surrendered after the
close of business on the April 23 or October 24 (whether or not a Business Day)
(each, a "Regular Record Date") and before the opening of business on the next
succeeding May 8 and November 8 (each, an "Interest Payment Date"),
respectively, need not have attached the Coupon maturing on the Interest Payment
Date to which such Regular Record Date relates. At the option of the Holder on
request, confirmed in writing, and subject to applicable laws and regulations, a
Registered Note or Registered Notes may be exchanged for a Registered Note or
Registered Notes of any authorized denominations and of equal aggregate
principal amount, upon surrender of the Registered Note to be exchanged, at the
office of the Registrar or at the office of any Transfer Agent. Subject to
Section 5(e), whenever any Registered Note is so surrendered for exchange,
together with a written request for exchange, the Fiscal Agent shall promptly
authenticate and deliver (directly or through the Registrar or a Transfer Agent,
as the case may be) a Registered Note or Notes which the Holder making the
exchange is entitled to receive.
(d) The Issuer shall execute and deliver to the Fiscal Agent Bearer
Notes and Registered Notes in such amounts and at such times as to enable the
Fiscal Agent to fulfill its responsibilities under this Agreement and the Notes.
(e) The Registrar, the Fiscal Agent and the Transfer Agents, as the
case may be, shall not register the transfer of or exchange Notes during any
period referred to in paragraph 9(e) of the Terms, except as otherwise provided
in such paragraph 9(e).
(f) The Fiscal Agent is hereby authorized, in accordance with
paragraph 9(a) of the Terms, to authenticate and deliver from time to time Notes
in exchange for or in lieu of Notes which become mutilated, defaced, destroyed,
stolen or lost. Each Note delivered in exchange for or in lieu of any Note shall
carry all the rights to interest accrued and unpaid and to accrue which were
carried by such Note.
(g) Transfer, registration and exchange (other than in accordance
with paragraph 9(a) of the Terms) of any Note or Notes shall be permitted and
executed as provided in this Section 5 without any charge to the Holder of any
such Note or Notes other than any taxes or governmental charges payable on
transfers or any expenses of delivery by other than regular mail, but subject to
such reasonable regulations as the Issuer, the Registrar and the Transfer Agents
may prescribe. Any registration of transfer or exchange will be
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effected upon the Registrar or the Transfer Agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request and, with respect to Registered Notes, upon registration of such
transfer in the Note Register. Registration of the transfer of a Registered Note
by the Registrar shall be deemed to be the acknowledgment of such transfer on
behalf of the Issuer.
(h) Only QIBs may hold interests in DTC Notes. Resales or other
transfers between QIBs holding an interest in a DTC Note will be conducted
according to DTC rules and procedures applicable to United States corporate debt
obligations and, so long as such transfers are effected through DTC to another
QIB pursuant to Rule 144A under the 1933 Act without the issuance of Definitive
Notes, shall not require the delivery of a Transfer Certificate (as defined
below). A QIB holding an interest in a DTC Note who proposes to transfer all or
part of such interest (other than pursuant to Rule 144A of the 1933 Act to
another QIB who will also hold such interest through DTC pursuant to a transfer
effected through DTC without the issuance of a definitive Note) must notify the
Registrar and, prior to such transfer, such transferor must complete, sign and
deliver to the Registrar or a Transfer Agent a certification substantially in
the form of Exhibit J hereto (a "Transfer Certificate") and, if the transfer is
being made to an Institutional Accredited Investor, as defined in and
contemplated by clause (v) below, the transferee must, prior to such transfer,
sign and deliver to the Registrar or a Transfer Agent a certification
substantially in the form of Exhibit I hereto. The Issuer will provide to the
Fiscal Agent from time to time and the Fiscal Agent shall make available at its
office and the office of each Transfer Agent and Registrar at the request of any
Holder of any Restricted Notes, copies of the forms attached hereto as Exhibits
I and J. A QIB holding an interest in a DTC Note may at any time exchange such
interest for Registered Notes in definitive form upon application to the
Registrar or a Transfer Agent. Notes issued in exchange for or upon registration
of transfer of interests in the DTC Notes shall be issued only as Registered
Notes, which, so long as required by this Agreement, shall be Restricted Notes
in minimum denominations of $250,000 and integral multiples of $1,000 in excess
thereof.
Subject to compliance with this Section 5(h), upon any registration of
transfer or exchange of an interest in a DTC Note for Registered Notes in
definitive form, the DTC Note shall be endorsed by or on behalf of the Fiscal
Agent to reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of such definitive Registered Notes and the Registrar
shall take such other action as is appropriate to register the exchange of such
Notes or to register the transfer of such Notes to or for the account of the
transferee.
A QIB holding definitive Registered Notes may at any time exchange such
Notes for interests in the DTC Notes by notifying the Registrar. Subject to
compliance with this Section 5(h) and upon surrender of such definitive
Registered Notes to the Registrar or a Transfer Agent, the DTC Note shall be
endorsed by or on behalf of the Fiscal Agent to reflect the increase in its
principal amount by an amount equal to the aggregate principal amount of such
definitive Registered Notes and the Registrar shall take such other action as is
appropriate to register the exchange of such definitive Registered Notes for
interests in the DTC Notes.
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Registration of transfer of Restricted Notes shall be made by the Registrar
only (i) to the Issuer, (ii) pursuant to a registration statement which has been
declared effective under the 1933 Act, (iii) to a person reasonably believed by
the transferor to be a QIB that purchases for its own account or for the account
of a QIB to whom notice is given that the transfer is being made in reliance on
Rule 144A under the 1933 Act ("Rule 144A"), (iv) pursuant to offers and sales to
non-U.S. persons that occur outside the United States within the meaning of
Regulation S under the 1933 Act, (v) to institutional investors who are
"accredited investors" within the meaning of subparagraph (a)(1), (a)(2), (a)(3)
or (a)(7) of Rule 501 under the 1933 Act ("Institutional Accredited Investors")
who are acquiring for investment purposes and not for distribution in violation
of the 1933 Act or (vi) pursuant to any other available exemption from the
registration requirements of the 1933 Act (subject in each of the foregoing
cases to any requirement of law that the disposition of the transferee's
property be at all times within its control). The restrictions on the transfer
of a Restricted Note set forth in this Section 5(h) shall not apply subsequent
to the Resale Restriction Termination Date with respect to such Restricted Note;
in addition, to the extent that the Issuer shall determine, in the case of any
particular Restricted Note, that such restrictions are no longer required under
applicable law, the Issuer may, in its sole and absolute discretion, waive such
restrictions as to such Note prior to its Resale Restriction Termination Date.
Except as provided above for the transfer of DTC Notes between QIBs effected
through DTC without the issuance of definitive Notes, in connection with the
transfer of any Restricted Note (or shares of Common Stock issued upon
conversion of a Restricted Note) prior to the Resale Restriction Termination
Date with respect to such Note (or shares of Common Stock, as the case may be)
the transferor must complete, sign and deliver a Transfer Certificate to the
Registrar or a Transfer Agent and, if the transfer is being made to an
Institutional Accredited Investor as contemplated by clause (v) above, the
transferee must, prior to such transfer, sign and deliver to the Registrar or a
Transfer Agent a certificate substantially in the form of Exhibit I hereto. In
connection with the transfer pursuant to clause (v) above of any Restricted
Note, including interests in a DTC Note (or shares of Common Stock issued upon
conversion of a Restricted Note), prior to the Resale Restriction Termination
Date with respect to such Note (or shares of Common Stock, as the case may be)
the Issuer, the Registrar and any Transfer Agent may require the delivery of an
opinion of counsel satisfactory to them prior to such transfer. Any resale or
other transfer, or attempted resale or other transfer, of Restricted Notes (or
shares of Common Stock issuable upon conversion thereof) made other than in
compliance with the foregoing restrictions shall not be recognized by the
Issuer, the Registrar or any other agent of the Issuer.
(i) The Issuer agrees (i) to make available such information as may
be required by Rule 144A under the 1933 Act to enable resales and other
transfers of the Restricted Notes (and shares of Common Stock issued on
conversion thereof) to be made pursuant to Rule 144A (which information will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading) and (ii) that it will
otherwise use all reasonable efforts to ensure that the exemption from
registration under the 1933 Act remains available with respect to resales and
other transfers of the Restricted Notes (and shares of Common Stock issued on
conversion thereof). Subject to Section 16 hereof and paragraph 10(a) of the
Terms, the Issuer and the Fiscal Agent may amend or supplement
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this Agreement and the Notes from time to time, without the consent of but upon
notice to the Holders of Restricted Notes, to modify the restrictions on and
procedures for resales and other transfers of Restricted Notes to reflect any
change in applicable law or regulation (or the interpretation thereof) or
practices relating to the resale or other transfer of restricted securities
generally. The Issuer shall provide a sufficient new inventory of Restricted
Notes reflecting such changes.
(j) All Notes, together with any Coupons attached thereto,
surrendered for payment, redemption, conversion, registration of transfer or
exchange and all Coupons surrendered for payment shall be delivered to the
Fiscal Agent. The Fiscal Agent shall cancel and destroy all such Notes and
Coupons surrendered for payment, redemption, conversion, registration of
transfer or exchange and shall deliver a certificate of destruction to the
Issuer. The Fiscal Agent shall cancel and destroy the Global Note upon its
exchange in full and shall deliver a certificate of destruction to the Issuer.
Such certificate shall also state that a certificate or certificates of
Euroclear or Cedel to the effect referred to in Section 4(b) was received with
respect to each portion of the Global Note exchanged for definitive Notes.
(k) Notwithstanding anything to the contrary in this Section 5, the
Issuer, the Registrar and any Transfer Agent may (and the Registrar and any
Transfer Agent, upon request of the Issuer set forth in an Officer's
Certificate, shall) refuse to register the transfer or exchange of any Note if
and upon information provided by an Officer's Certificate of the Issuer, such
transfer or exchange (i) would, or in the determination of the Board of
Directors of the Issuer might, result in a single person beneficially owning
(or, upon conversion of any Notes into Common Stock of the Issuer pursuant to
Section 14 hereof, thereupon owning), directly or indirectly, more than 9.9% of
the Issuer's outstanding shares of Common Stock (including for this purpose
Common Stock issuable upon conversion of Notes held by such person, but not
Common Stock issuable upon conversion of Notes held by other persons) or (ii)
would cause the Issuer to fail to meet any of the requirements necessary for the
continued qualification of the Issuer as a "real estate investment trust" under
Sections 856-860 (or any successor provisions thereto) of the Internal Revenue
Code of 1986, as amended (the "Code"). If the exchange or transfer of any Note
would cause either of the consequences described in the immediately preceding
sentence of this Section 5(k), then such exchange or transfer will be null and
void ab initio as to the Holder, the transferor and intended transferee of such
-- ------
Note, and such intended transferee will acquire no rights or economic interests
whatsoever in such Note. Each Note (including Global Note, the DTC Notes and
Restricted Notes) will bear a legend setting forth the foregoing restrictions on
transfer and exchange of Notes. The Issuer hereby agrees to indemnify the
Registrar, the Fiscal Agent and each Transfer Agent and to hold each of them
harmless against any loss, liability or expense, incurred without negligence or
bad faith on their part, arising out of or in connection with actions taken or
omitted to be taken in reliance upon such Officer's Certificate. For purposes of
the transfer and exchange limits in this Section 5(k), beneficial ownership
shall include actual ownership as well as constructive ownership as set forth in
both Code Section 544 (as modified by Code Section 856(h)(1)) and Code Section
318(a) (as modified by Code Section 856(d)(5)).
11
6. (a) The Issuer will duly and punctually pay to the Fiscal Agent
the amounts required to be paid by it herein and in the Notes, and the Issuer
hereby authorizes and directs the Fiscal Agent, upon receipt of such funds from
the Issuer, to make or cause to be made payment of the principal of, and
interest on, the Notes in accordance with the Terms. The Issuer shall pay to the
Fiscal Agent at such account with such bank in The City of New York as the
Fiscal Agent may from time to time designate, or at such other location as is
mutually acceptable to the Issuer and the Fiscal Agent, on or prior to the day
which is one Business Day next preceding the due date of any principal of or
interest on any Notes, such amounts in U.S. dollars as are sufficient to pay the
principal and interest becoming due on such date. The Fiscal Agent shall apply
the amounts so paid to it to the payment of such principal and interest in
accordance with the Notes and the Terms, and pending such application, such
amounts will be held in trust by the Fiscal Agent for the benefit of the persons
entitled thereto. The term "Business Day," with respect to any place of payment,
place of conversion or any other place, as the case may be, shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in The City of New York or that place of payment, place of
conversion or other place, as the case may be, are authorized or obligated by
law or executive order to close; provided that in the case of a payment by the
Issuer to the Fiscal Agent pursuant to this Section 6(a) or of a determination
of the market value of Common Stock pursuant to Section 14(c), a "Business Day"
shall be determined solely with reference to banking institutions in The City of
New York.
Whenever in this Agreement there is mentioned, in any context, the
payment of principal of or interest on, or in respect of, any Note or Coupon,
such mention shall be deemed to include mention of the payment of Additional
Amounts (as defined in the Terms) provided for in paragraph 4 and paragraph 5(c)
of the Terms (it being understood that the term "Additional Amounts" includes
Additional Amounts payable pursuant to paragraph 5(c) of the Terms) to the
extent that in such context Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of paragraph 4 or paragraph 5(c) of
the Terms.
(b) At least ten Business Days prior to May 8, 1994, and at least ten
Business Days prior to each May 8 and November 8 thereafter if there has been
any change with respect to the matters set forth in the below-mentioned
certificate, the Issuer shall furnish the Fiscal Agent and each other paying
agent (each, a "Paying Agent") of the Issuer with an Officer's Certificate
instructing the Fiscal Agent and each other Paying Agent as to any circumstances
in which payments of principal of, or interest on, the Notes due on such date
shall be subject to deduction or withholding for or on account of any taxes
described in paragraph 4 or 5(c) of the Terms and the rate of any such deduction
or withholding. If any such deduction or withholding shall be required and if
the Issuer becomes liable to pay Additional Amounts pursuant to paragraph 4 or
5(c) of the Terms, then at least five Business Days prior to the date of any
such payment of principal or interest the Issuer will furnish the Fiscal Agent
and each other Paying Agent with a certificate which specifies, by country, the
amount required to be withheld on such payment to Holders of the Notes or
Coupons, and the Additional Amounts, if any, due to Holders of the Notes or
Coupons, and will pay to the Fiscal Agent such Additional Amounts as shall be
required to be paid to such Holders in
12
accordance with Section 6(a). The Issuer hereby agrees to indemnify the Fiscal
Agent and each other Paying Agent for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any certificate furnished pursuant to this Section 6(b).
(c) The obligations of the Issuer under this Agreement and the Notes
and all documents delivered in the name of the Issuer in connection herewith and
therewith do not and shall not constitute personal obligations of the directors,
officers, employees, agents or shareholders of the Issuer or any of them, and
shall not involve any claim against or personal liability on the part of any of
them, and all persons including each Holder of a Note and the Fiscal Agent shall
look solely to the assets of the Issuer for the payment of any claim hereunder
or thereunder or for the performance hereof or thereof and shall not seek
recourse against such directors, officers, employees, agents or shareholders of
the Issuer or any of them or any of their personal assets for such satisfaction.
7. (a) The Notes are redeemable pursuant to paragraph 5 of the
Terms. If the Issuer shall elect or be required to redeem the outstanding Notes
pursuant to paragraph 5 of the Terms, the Issuer shall, not more than 60 nor
less than 30 days prior to the date designated for such redemption (unless a
shorter notice shall be satisfactory to the Fiscal Agent or a longer notice is
required by the Terms), give written notice to the Fiscal Agent of its intention
to redeem the Notes on the redemption date specified in such notice (any date
fixed for redemption pursuant to this Section 7, a "Redemption Date"). In the
case of a partial redemption pursuant to paragraph 5(a) of the Terms, such
notice shall state the principal amount of the Notes to be redeemed. Such notice
shall state that the conditions precedent to such redemption have occurred and
shall describe the same and shall be accompanied by any certificate and opinion
of counsel required pursuant to paragraph 5 of the Terms. Notice given hereunder
shall, except as otherwise provided in paragraph 5 of the Terms, be irrevocable.
(b) Upon receipt of notice from the Issuer of its intention to redeem
Notes pursuant to paragraph 5 of the Terms, the Fiscal Agent shall cause to be
given on behalf of the Issuer a notice of redemption of the Notes (in accordance
with paragraphs 5 and 13 of the Terms), specifying the Redemption Date, the
redemption price, the place or places of payment, that (except in the case of
redemption of the Global Note prior to the Exchange Date) payment will be made
upon presentation and surrender of the Notes to be redeemed, together with all
appurtenant Coupons, if any, maturing subsequent to the Redemption Date, that
interest accrued to the Redemption Date will be paid as specified in said
notice, and that on and after said date interest thereon shall cease to accrue.
In the case of a partial redemption pursuant to paragraph 5(a) of the Terms,
such notice shall specify the serial numbers of the Notes (or portions of
Registered Notes) to be redeemed which shall be selected by the Fiscal Agent in
such manner as it may deem appropriate and fair. Notice to Holders of redemption
(and of any revocation of a redemption notice given as permitted by paragraph
5(c) of the Terms) shall be published at least once a week for two successive
weeks prior to the date fixed for redemption, the first such publication (in the
case of a notice of redemption) to be not less than 30 days nor more than 60
days prior to the
13
Redemption Date, and also shall be given to Holders of Registered Notes by mail
as provided in Section 13 of the Terms not more than 60 nor less than 30 days
prior to the Redemption Date.
(c) Upon any redemption of all or a portion of a DTC Note, the DTC
Note shall be endorsed by or on behalf of the Fiscal Agent to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount so redeemed.
(d) Provisions of this Agreement which apply to redemption of a Note
in whole also apply to redemption of a portion of it.
(e) The Issuer will cause each notice of redemption to prominently
state that, with respect to any Note called for redemption, the redemption price
for such Note will not be paid unless the Holder shall have delivered, to the
Fiscal Agent or a Paying Agent, a certification to the effect set forth in
clause (B) of the second paragraph of Exhibit G hereto (a "Section 897
Certification"). The Issuer will also cause each notice of redemption mailed to
Holders of Registered Notes to include the form of such Section 897
Certification and each published notice of redemption to state that the form of
such Section 897 Certification is available from the Fiscal Agent or any Paying
Agent upon request by any Holder. The Issuer will provide to the Fiscal Agent
and each Paying Agent an adequate supply of such Section 897 Certification forms
and will cause them to provide such forms to Holders upon request.
8. For purposes of paragraph 13 of the Terms, the term "Authorized
Newspaper" means a newspaper customarily published on each Business Day in
morning editions, whether or not it shall be published in Saturday, Sunday or
holiday editions. If by reason of the temporary or permanent suspension of
publication of any newspaper or by reason of any other cause, it shall be
impossible to make publication of such notice in an Authorized Newspaper as
herein and in the Terms provided, then such publication or other notice in lieu
thereof as shall be made by the Fiscal Agent shall constitute sufficient
publication of such notice, if such publication or other notice shall, so far as
may be possible, approximate the terms and conditions of the publication in lieu
of which it is given. The Fiscal Agent shall promptly furnish to the Issuer and
to each other Paying Agent of the Issuer a copy of each notice of redemption
published. For purposes of publication of notices in The City of New York,
London and Luxembourg, it is expected that such publication will be made in The
Wall Street Journal, the Financial Times and the Luxemburger Wort, respectively.
9. The Issuer agrees to keep the Fiscal Agent advised of the names
and locations of all Paying Agents, Transfer Agents, conversion agents
("Conversion Agents") and the Registrar appointed pursuant hereto or to the
Terms, provided that until the Issuer shall otherwise notify the Fiscal Agent in
writing, the sole such Paying Agents, Transfer Agents, Conversion Agents and the
Registrar shall be those set forth in the Notes. The Fiscal Agent shall arrange
with all such Paying Agents for the payment, from funds furnished by the Issuer
to the Fiscal Agent pursuant to this Agreement, of the principal of,
14
and interest on, the Notes and for the compensation of all such agents for their
services as such.
10. The Fiscal Agent and each other agent of the Issuer hereunder
accepts appointment hereunder and its obligations set forth herein and in the
Notes upon the terms and conditions hereof and thereof, including the following,
to all of which the Issuer agrees and to all of which the rights of the Holders
from time to time of the Notes shall be subject:
(a) The Fiscal Agent and each other agent of the Issuer hereunder
shall be entitled to the compensation to be agreed upon with the Issuer for
all services rendered by it, and the Issuer agrees to pay such compensation
and to reimburse the Fiscal Agent and each other agent of the Issuer for
its reasonable out-of-pocket expenses (including reasonable fees and
expenses of counsel) incurred by it in connection with the services
rendered by it hereunder. The Issuer hereby agrees to indemnify the Fiscal
Agent and each other agent of the Issuer for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or bad
faith on their part arising out of or in connection with its acting as
Fiscal Agent or other agent of the Issuer hereunder, as the case may be, or
performing any other duties pursuant to the terms and conditions hereof.
The obligations of the Issuer under this Section 10(a) shall survive
payment of the Notes and the resignation or removal of the Fiscal Agent or
each other agent of the Issuer, as the case may be. The obligations of the
Issuer under this Section 10(a) shall not be subject to the operation of
paragraph 2 of the Terms.
(b) Anything herein or in the Notes to the contrary notwithstanding,
in acting under this Agreement and in connection with the Notes and
Coupons, the Fiscal Agent and each other agent of the Issuer hereunder is
acting solely as agent of the Issuer and does not assume any obligation
towards or relationship of agency or trust for or with any of the owners or
Holders of the Notes or Coupons or holders of Senior Indebtedness (as
defined in the Terms), except that all funds held by the Fiscal Agent or
any other Paying Agent of the Issuer for the payment of principal of, or
interest on, the Notes shall, subject to the provisions of paragraph 3(d)
of the Terms, be held in trust by it and applied as set forth herein and in
the Notes, but need not be segregated from other funds held by it, except
as required by law. Without limitation to the foregoing, (i) any
requirement that any agreement, opinion of counsel or other document be
satisfactory to the Fiscal Agent shall not create any relationship of trust
for or with any of the owners or Holders of the Notes or Coupons, and (ii)
any provision to the effect that the Fiscal Agent may give notice of
default or acceleration of the Notes shall neither create any relationship
of trust for or with any of the owners or Holders of Notes or Coupons or
require that the Fiscal Agent give any such notice except at the direction
of the Holders of the requisite percentage in principal amount of the
Notes.
(c) The Fiscal Agent and each other agent of the Issuer hereunder may
consult with counsel satisfactory to it and any advice or written opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken,
15
suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion.
(d) The Fiscal Agent and each other agent of the Issuer hereunder
shall be protected and shall incur no liability for or in respect of any
action taken or omitted to be taken or thing suffered by it in reliance
upon any Note, Coupon, instrument of transfer, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper party or parties.
(e) The Fiscal Agent and each other agent of the Issuer hereunder,
and each of their respective officers, directors and employees, in its
individual capacity or any other capacity, may become the owner of, or
acquire any interest in, any Notes or Coupons or Common Stock or Senior
Indebtedness or other obligations of the Issuer with the same rights that
it would have if it were not the Fiscal Agent or such other agent of the
Issuer or an officer, director or employee thereof, as the case may be, and
may engage or be interested in any financial or other transaction with the
Issuer, and may act on, or as depositary, trustee or agent for, any
committee or body of Holders of Notes or Coupons or holders of other
obligations of the Issuer, or shares of capital stock of the Issuer, as
freely as if it were not the Fiscal Agent or such other agent of the Issuer
or an officer, director or employee thereof, as the case may be.
(f) Neither the Fiscal Agent nor any other agent of the Issuer
hereunder shall be under any liability for interest on any moneys received
by it pursuant to any of the provisions of this Agreement or the Notes
except as may be otherwise agreed with the Issuer.
(g) The recitals contained herein and in the Notes (except in the
Fiscal Agents certificate of authentication) shall be taken as the
statements of the Issuer, and the Fiscal Agent assumes no responsibility
for the correctness of the same. The Fiscal Agent does not make any
representation as to the validity or sufficiency of this Agreement, the
Notes or the Coupons, except as to the due execution by it of this
Agreement and the due authentication by it of the Notes. Neither the Fiscal
Agent nor any other agent of the Issuer hereunder shall be accountable for
the use or application by the Issuer of any of the Notes or the proceeds
thereof, or for the compliance by the Issuer with any of its covenants or
agreements contained in the Notes.
(h) The Fiscal Agent and each other agent of the Issuer hereunder
shall be obligated to perform such duties and only such duties as are
herein and in the Notes specifically set forth, and no implied duties or
obligations shall be read into this Agreement or the Notes against the
Fiscal Agent or any such agent. Neither the Fiscal Agent nor any other
agent hereunder shall be under any obligation to take any action not
specifically provided for hereunder which may tend to involve it in any
expense or liability, unless the Issuer or one or more Noteholders shall
furnish the
16
Fiscal Agent or such agent with security and indemnity acceptable to it for
any costs or expenses which may be incurred.
(i) The Fiscal Agent may execute any powers or perform any duties
hereunder either directly or by or through agents or attorneys and the
Fiscal Agent shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it hereunder.
(j) Neither the Fiscal Agent nor any other agent of the Issuer
hereunder shall be responsible or liable for the implementation of the
subordination provisions set forth in paragraph 2 of the Terms. No such
agent shall be deemed to have notice of any facts or circumstances which
would prevent the making of any payment hereunder unless such agent shall
have received written notice from an Authorized Officer of such facts or
circumstances and such written notice directs such agent to refrain from
making any payments hereunder.
11. (a) The Issuer agrees that, until all the Notes and Coupons are no
longer outstanding or until moneys for the payment of all principal of, and
interest on, all outstanding Notes shall have been made available to the Fiscal
Agent and shall have been returned to the Issuer as provided in paragraph 3(d)
of the Terms, whichever occurs earlier, there shall at all times be a Fiscal
Agent hereunder with a Corporate Trust Office in The City of New York. The
Fiscal Agent shall at all times be a responsible financial institution which is
authorized by law to exercise the powers and duties of the Fiscal Agent
hereunder.
(b) The Fiscal Agent may at any time resign by giving written notice of
its resignation to the Issuer and specifying the date on which its resignation
shall become effective, provided that such date shall be at least 90 days after
the date on which such notice is given unless the Issuer agrees to accept
shorter notice. Upon receiving such notice of resignation, the Issuer shall
promptly appoint a successor fiscal agent, qualified as aforesaid, by written
instrument in duplicate signed on behalf of the Issuer, one copy of which shall
be delivered to the resigning Fiscal Agent and one copy to the successor fiscal
agent. Such resignation shall become effective upon the later of (i) the
effective date of such resignation or (ii) the acceptance of appointment by the
successor fiscal agent as provided in Section 11(d). The Issuer may, at any time
and for any reason, remove the Fiscal Agent and appoint a successor fiscal
agent, qualified as aforesaid, by written instrument in duplicate signed on
behalf of the Issuer, one copy of which shall be delivered to the Fiscal Agent
being removed and one copy to the successor fiscal agent. Any removal of the
Fiscal Agent and any appointment of a successor fiscal agent shall become
effective upon acceptance of appointment by the successor fiscal agent as
provided in Section 11(d). Upon its resignation or removal, the Fiscal Agent
shall be entitled to the payment by the Issuer of its compensation for the
services rendered hereunder and to the reimbursement of all reasonable out-of-
pocket expenses incurred in connection with the services rendered by it
hereunder.
(c) In case at any time the Fiscal Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with
17
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or shall seek the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to, or shall have had entered against it a court
order for, any such relief or to the appointment of or taking possession by any
such official in any involuntary case or other proceedings commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due or if any public officer shall
take charge or control of it or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor fiscal agent, qualified
as aforesaid, shall be appointed by the Issuer by an instrument in writing. Upon
the appointment as aforesaid of a successor fiscal agent and acceptance by it of
such appointment, the Fiscal Agent superseded shall cease to be such Fiscal
Agent hereunder. If no successor fiscal agent shall have been so appointed, or
if so appointed, shall not have accepted appointment as hereinafter provided,
any Holder of a Note, on behalf of itself and all others similarly situated, or
the Fiscal Agent may petition any court of competent jurisdiction for the
appointment of a successor fiscal agent.
(d) Any successor fiscal agent appointed hereunder shall execute and
deliver to its predecessor and to the Issuer an instrument accepting such
appointment hereunder, and thereupon such successor fiscal agent, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Fiscal Agent hereunder, and such predecessor, upon
payment of its compensation and out-of-pocket expenses then unpaid, shall pay
over to such successor agent all moneys or other property at the time held by it
hereunder.
(e) Any corporation or bank into which the Fiscal Agent may be merged or
converted, or any corporation or bank with which the Fiscal Agent may be
consolidated, or any corporation or bank resulting from any merger, conversion
or consolidation to which the Fiscal Agent shall be a party, or any corporation
or bank to which the Fiscal Agent shall sell or otherwise transfer all or
substantially all its corporate trust assets and business, or any corporation or
bank succeeding to the corporate trust business of the Fiscal Agent hereunder
(provided that such corporation shall be qualified as aforesaid) shall be the
successor to the Fiscal Agent hereunder, without the execution or filing of any
document or any further act on the part of any of the parties hereto.
12. (a) If at any time there shall be a merger, consolidation, or
transfer, sale or conveyance of assets to which the provisions of paragraph 8(a)
of the Terms are applicable, and the Successor Corporation (as defined in the
Terms) is other than the Issuer, then in any such event such Successor
Corporation shall promptly deliver to the Fiscal Agent:
(i) a certificate signed by an executive officer of such
Successor Corporation stating that as of the time immediately after the
effective date of any such transaction the covenants and obligations of the
Issuer contained in this Agreement and the Notes have been complied with
and the Successor Corporation is not in
18
default in the performance of any covenants or obligations of the Issuer in
this Agreement, the Coupons or the Notes; and
(ii) a written opinion of legal counsel (who may be an employee
of or counsel to the Successor Corporation) stating that in such counsel's
opinion such covenants and obligations have been complied with and that any
instrument or instruments executed in the performance of such covenants and
obligations comply with the requirements thereof.
In case of any such merger, consolidation, transfer, sale or conveyance and
upon compliance with this Section 12 and the Terms, such Successor Corporation
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein and in the Notes and Coupons as the Issuer; and the
Issuer shall thereupon be relieved of any further obligation or liability
hereunder or upon the Notes and Coupons. Such Successor Corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
the Issuer, any of or all the Notes issuable hereunder which theretofore shall
not have been executed on behalf of the Issuer and delivered to the Fiscal
Agent; and, upon the order of such Successor Corporation, instead of the Issuer,
and subject to all the terms, conditions and limitations in this Agreement
prescribed, the Fiscal Agent shall authenticate and shall deliver any Notes
which previously shall have been signed and delivered on behalf of the Issuer to
the Fiscal Agent for authentication, and any Notes which such Successor
Corporation thereafter shall cause to be signed and delivered to the Fiscal
Agent for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Notes theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
such Notes had been issued at the date of the execution hereof. In case of any
such merger, consolidation, transfer, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.
(b) The Fiscal Agent, subject to the provisions of Sections 10(c) and
10(d), may rely on the documents delivered by any Successor Corporation pursuant
to this Section 12 as conclusive evidence that any such merger, consolidation,
sale or conveyance complies with the provisions of this Section 12 and the
Notes.
13. (a) The Issuer may at any time call a meeting of the Holders of the
Notes, to be held at such time and at such place as the Issuer shall determine,
for any purpose referred to in paragraph 10(b) of the Terms. Notice of any
meeting of Noteholders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
published in accordance with paragraph 13 of the Terms at least twice in an
Authorized Newspaper in New York City and in London and, so long as the Notes
are listed by the Issuer on the Luxembourg Stock Exchange and such Exchange so
requires, in Luxembourg, and shall be mailed to Holders of Registered Notes in
accordance with paragraph 13 of the Terms, the first publication and such
mailing to be not less than 20 nor more than 180 days prior to the date fixed
for the meeting. To be entitled to vote at any meeting of Noteholders a person
shall be (i) a Holder of one or more Notes or (ii) a person appointed by an
instrument in writing as proxy by the Holder of one or more Notes. The
19
only persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at each meeting and their
counsel and any representatives of the Issuer or the Fiscal Agent and their
respective counsel.
(b) The quorum requirements at any meeting of Noteholders are set
forth in paragraph 10(c) of the Terms. No business shall be transacted in the
absence of a quorum, unless a quorum is present when the meeting is called to
order. In the absence of a quorum within 30 minutes after the time appointed for
any such meeting, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided above, except that such notice
need be given only once but must be given not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of the
aggregate principal amount of the outstanding Notes which shall constitute a
quorum.
(c) Any Noteholder who has executed an instrument in writing
appointing a person as proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided, however, that such
-------- -------
Noteholder shall be considered as present or voting only with respect to the
matters covered by such instrument in writing. Any resolution passed or decision
taken at any meeting of Noteholders duly held in accordance with this Section 13
shall be binding on all the Noteholders whether or not present or represented at
the meeting.
(d) The holding of Bearer Notes shall be proved by the production of
such Bearer Notes or by a certificate, satisfactory to the Issuer, executed by
any bank, banker, trust company or recognized securities dealer, wherever
situated, satisfactory to the Issuer. Each such certificate shall be dated and
shall state that on the date thereof a Bearer Note bearing a specified serial
number was deposited with or exhibited to such bank, banker, trust company or
recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Notes specified
therein. The holding by the person named in any such certificate of any Bearer
Note specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (i) another certificate bearing a later date issued in respect of
the same Bearer Note shall be produced, (ii) the Bearer Note specified in such
certificate shall be produced by some other person or (iii) the Bearer Note
specified in such certificate shall have ceased to be outstanding. The
appointment of any proxy shall be proved by having the signature of the person
executing the proxy guaranteed by any bank, banker, trust company or recognized
securities dealer satisfactory to the Issuer. The holding of Registered Notes
shall be proved by the Note Register maintained in accordance with Section 5(a)
or by a certificate or certificates of the Fiscal Agent in its capacity as the
Issuer's agent for the maintenance of such books.
(e) The Issuer shall appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of the Notes represented
at the meeting. At any meeting each Noteholder or proxy shall be entitled to one
vote for each $1,000 principal
20
amount of Notes held or represented by him; provided, that no vote shall be cast
or counted at any meeting in respect of any Note 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 Noteholder or proxy. Any
meeting of Noteholders duly called at which a quorum is present may be adjourned
from time to time, and the meeting may be held as so adjourned without further
notice.
(f) The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballot on which shall be subscribed the
signatures of the Noteholders or proxies and on which shall be inscribed the
serial number or numbers of the Notes 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 in duplicate of the
proceedings of each meeting of Noteholders 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 facts setting forth a copy of the
notice of the meeting and showing that said notice was published as provided
above. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Issuer and the other to the Fiscal Agent to be preserved by the Fiscal Agent,
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.
14. (a) Subject to and upon compliance with the provisions of this
Section 14, the Holder of any Note shall have the right at his option, at any
time on or after the Exchange Date and prior to the close of business on
November 8, 2000 (or if such Note is called for redemption, then to and
including but not after the close of business on the Redemption Date for such
Note unless the Issuer shall default in the payment due upon redemption
thereof), to convert any Bearer Note, and to convert any Registered Note or
portion thereof which is $1,000 or any multiple integral thereof (provided that
the unconverted portion of any Restricted Note shall not be less than $250,000),
into that number of fully paid and nonassessable shares of Common Stock obtained
by dividing the principal amount of the Note or portion thereof surrendered for
conversion by the conversion price specified in paragraph 6 of the Terms (as the
same may be adjusted from time to time as hereinafter provided) and rounding the
result to the nearest 1/100th of a share, by surrender of the Note to be
converted in whole or in part in the manner provided in Section 14(b).
Provisions of this Agreement that apply to conversion of a Note in whole also
apply to conversion of a portion of it. For purposes of this Agreement, "Common
Stock" means the common stock, par value $1.00 per share, of the Issuer, and
"conversion price" means the conversion price specified in paragraph 6 of the
Terms as the same may be adjusted from time to time as hereinafter provided. In
case by reason of the operation of this Section 14, the Notes shall be
convertible into any other shares or other securities or property of the Issuer
or any other corporation, any reference in this Agreement or the Notes to the
conversion of Notes pursuant to Section 14 shall be deemed to refer to and
include conversion of Notes into such other shares or other securities or
property.
21
(b) In order to exercise the conversion privilege, the Holder of any
Note to be converted in whole or in part shall surrender such Note, together in
the case of Bearer Notes with all unmatured Coupons, duly endorsed or assigned
to the Issuer in blank. In the case of the Registered Notes, such Note may be
surrendered, at the option of the Holder, at the Corporate Trust Office of the
Fiscal Agent or, subject to applicable laws and regulations, at the office of
any Conversion Agent that may be appointed by the Issuer, and, in the case of
Bearer Notes, subject to applicable laws and regulations, at the office of the
Chemical Bank, 125 London Wall, London EC2Y 5AJ, England or Banque
Internationale a Luxembourg S.A., 2 Boulevard Royale, L-2953 Luxembourg or at
the office of any other Conversion Agent appointed by the Issuer outside the
United States, accompanied by the funds, if any, required by the antepenultimate
paragraph of this Section 14(b), and shall give a duly completed written notice
of conversion in substantially the form provided on the Notes (or, in the case
of the conversion of DTC Notes, in substantially the form attached as Exhibit G
hereto) to the Issuer at such office that the Holder elects to convert such Note
or the portion thereof specified in said notice. Such notice shall also state
the name or names (with address or addresses) in which the certificate or
certificates for the Common Stock which shall be issuable on such conversion
shall be issuable (unless issuable in the name of the Holder of the Note
surrendered for conversion), and shall be accompanied by payment of transfer
taxes, if required pursuant to Section 14(g). Bach Note surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the Holder of such Note, be duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the
Fiscal Agent or any such Conversion Agent, as the case may be, and duly executed
by the Holder thereof or his attorney duly authorized in writing. If the shares
of Common Stock issuable upon conversion of any Restricted Note are not to be
issued in the same name as the Holder of such Restricted Note, or if any portion
of a DTC Note is to be converted, prior to the Resale Restriction Termination
Date with respect thereto, the converting Holder or beneficial owner must
complete, sign and deliver to the Registrar or a Transfer Agent a Transfer
Certificate and, if the transfer is being made to an Institutional Accredited
Investor, the transferee must, prior to such transfer, sign and deliver to the
Registrar or a Transfer Agent a certificate substantially in the form of Exhibit
I hereto and such shares of Common Stock or Note certificates shall only be
issuable in compliance with the same restrictions on transfer as are applicable
to the transfer of Restricted Notes pursuant to Section 5(h) hereof.
Notwithstanding the foregoing, if conversion at all Conversion Agents outside
the United States is illegal or effectively precluded because of the imposition
of exchange controls or similar restrictions, Bearer Notes may be surrendered
for conversion at the Corporate Trust Office of the Fiscal Agent. The "Corporate
Trust Office" means the principal office of the Fiscal Agent in New York, New
York at which at any particular time its corporate trust business shall be
administered except that, with respect to the presentation of Notes for payment
or registration of transfer or exchange or conversion, such term means the
office or agency of the Fiscal Agent in said city at which at any particular
time its corporate trust agency business shall be conducted.
As promptly as practicable after the surrender of any such Note and
the receipt of such notice and other documents and funds, if any, as aforesaid,
the Issuer shall issue and shall deliver at such office to such Holder or, on
his written order, to his order, a certificate or certificates for the number of
full shares issuable upon the conversion of such Note or (if
22
a Registered Note) portion thereof in accordance with the provisions of this
Section 14 and a check or cash in respect of any fractional interest in respect
of the Common Stock arising upon such conversion as provided in Section 14(c).
In case any Registered Note in a denomination greater than $1,000 shall be
surrendered for partial conversion and subject to Section 3, the Issuer shall
execute and the Fiscal Agent shall authenticate and deliver to or upon the
written order of the Holder of the Note so surrendered, without charge to such
Holder, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected on the date (a
"Conversion Date") on which such Note shall have been surrendered (accompanied
by the funds, if any, required by the next paragraph of this Section 14(b)) and
such notice and other required documents, if any, shall have been received by
the Issuer as aforesaid, and the person in whose name any certificate or
certificates for the Common Stock shall be issuable upon such conversion shall
be deemed to have become on said date the Holder of record of the shares
represented thereby; provided, however, that any such surrender on any date when
-------- -------
the stock transfer books of the Issuer shall be closed shall be effective, for
purposes of the determination of the record Holder of such Common Stock, on the
next succeeding day on which such stock transfer books are open, but such
conversion shall be at the conversion price in effect on the date upon which
such Note shall have been surrendered.
Any Registered Note or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Registered Note or the portion thereof being converted shall
have been called for redemption on a date in such period) be accompanied by
payment of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
-------- -------
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the Notes. An amount equal to such payment
shall be paid by the Issuer on such Interest Payment Date to the Holder of such
Registered Note on such Regular Record Date, except as otherwise provided on the
face of the Registered Notes in respect of the payment of defaulted interest.
Except as provided above in this Section 14(b), no adjustment shall be made for
interest accrued on any Note converted or for dividends on any shares issued
upon the conversion of such Note as provided in this Section 14.
Upon any such conversion of all or a portion of a DTC Note, the DTC
Note shall be endorsed by or on behalf of the Fiscal Agent to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount so converted. Upon surrender of a Registered Note that is converted in
part only, the Issuer shall execute and the Fiscal Agent shall authenticate a
new Registered Note equal in principal amount to the unconverted portion of the
Registered Note surrendered.
Coupons appertaining to any Note surrendered for conversion but in
default on the Conversion Date shall continue to be payable as provided in this
Agreement notwithstanding the conversion of such Note.
23
(c) No fractional Common Stock or scrip representing fractional
shares shall be issued upon conversion of the Notes. If more than one Note shall
be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional shares of stock
would be issuable upon the conversion of any Note or Notes, the Issuer shall
make an adjustment therefor in cash equal to the amount obtained by multiplying
such fraction by the market price of a share of Common Stock. Solely for
purposes of this Section 14(c), the "market price" of a share of a Common Stock
means the last reported sale price of the Common Stock on the New York Stock
Exchange Composite Tape on the date on which the Notes (or specified portions
thereof) are deemed to have been converted (or, if such date is not a trading
day, on the next preceding trading day) and rounding the result to the nearest
cent. In the absence of such quotation, the Issuer shall determine the current
market value on the basis of such quotations as it considers appropriate.
(d) The initial conversion price shall be as specified in paragraph 6
of the Terms, and shall be subject to adjustment from time to time as provided
in this Section 14.
(e) The terms of conversion shall be adjusted from time to time as
follows:
(i) In case at any time after October 25, 1993, the Issuer
shall (a) pay a dividend or make a distribution on its Common Stock in
shares of its Common Stock (b) subdivide its outstanding shares of Common
Stock into a greater number of shares, (c) combine its outstanding shares
of Common Stock into a smaller number of shares, (d) make a distribution on
its Common Stock in shares of its capital stock other than Common Stock, or
(e) issue by reclassification of its Common Stock any shares of its capital
stock, the conversion privilege and the conversion price in effect
immediately prior thereto will be adjusted so that the Holder of any Note
thereafter converted shall be entitled to receive the number of shares of
capital stock of the Issuer which he would have owned or have been entitled
to receive immediately after the happening of any of the events described
in clauses (a) through (e) above had such Note been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
clause (i) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this
clause (i), the Holder of any Note thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Issuer, the Board of Directors of the Issuer or any committee
of the Board of Directors duly authorized to act thereunder (whose
determination shall be conclusive and shall be described in a written
statement filed with the Fiscal Agent) shall determine the allocation of
the adjusted conversion price between or among the classes of capital
stock. After such allocation, the conversion privilege and the conversion
price of each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to the Common Stock in
this Section 14. Solely as used in this clause (i) and the last paragraph
of clause (iii) below, "capital stock" of any person means any and all
24
common stock, preferred stock and other capital stock (however designated)
of such person.
(ii) In case at any time after October 25, 1993, the Issuer
shall (A) distribute any rights or warrants to all holders of its Common
Stock entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase shares of Common Stock
or securities convertible into or exchangeable for Common Stock at a price
per share (or having a conversion or exchange price per share) less than
the current market price per share of the Common Stock at the record date
for the determination of stockholders entitled to receive such rights or
warrants or (B) issue shares of Common Stock for cash or securities
convertible into or exchangeable for Common Stock to any person at a price
per share (or having a conversion or exchange price per share) less than
the current market price per share on the date of issuance (except in the
case of Common Stock or securities convertible into or exchangeable for
Common Stock issued in a bona fide public offering pursuant to a firm
commitment underwriting, in which case no adjustment of the conversion
price will be required), the conversion price shall be adjusted in
accordance with the formula:
(NxP)
------
C'= C x O + M
-------
O+N
where:
C' = the adjusted conversion price.
C = the current conversion price.
O = the number of shares of Common Stock outstanding on the record
date or date of issuance, as applicable.
N = the number of additional shares of Common Stock offered or
issuable upon conversion or exchange.
P = the offering, conversion or exchange price per share of the
additional shares.
M = the current market price (as defined in clause (iv) below) per
share of Common Stock on the record date or date of issuance as
applicable.
Under clause (A) above, the adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive the rights or warrants; provided, however, that, in the
-------- -------
event that all the shares of Common Stock offered for purchase are not
delivered upon the exercise of such rights or warrants, upon the expiration
of such rights or warrants the conversion price shall be immediately
readjusted to be what it would have been if "N" in the above formula had
been the number of shares actually issued. Under clause (B) above, the
adjustment shall be made whenever any such securities are issued and shall
become effective on the day such securities are issued.
25
In the event that (1) the Issuer shall enter into an agreement to
acquire all or any portion of a business as a going concern, in an arm's
length transaction between the Issuer and an unaffiliated third party,
whether such acquisition shall be effected by purchase of assets, exchange
of securities, merger, consolidation or otherwise, and (2) such agreement
shall provide for the Issuer to issue securities convertible into or
exchangeable for Common Stock to acquire, or in the acquisition of, such
business or portion thereof, as the case may be, and (3) such agreement
shall specify a fixed price per share at which such securities are
convertible into or exchangeable for Common Stock, then for purposes of
this clause (iii), the term "date of issuance", when used with respect to
such securities, means the date on which the Issuer shall have entered into
such agreement; provided, however, that, if the issuance of such securities
-------- -------
shall require an adjustment to the conversion price pursuant to clause (B)
above, then such adjustment shall only be made if and whenever any such
securities are issued and shall become effective on the day such securities
are issued.
(iii) In case at any time after October 25, 1993, the Issuer
distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or securities of
the Issuer (including securities or cash, but excluding (x) distributions
of Common Stock referred to in clause (i) above and distributions of rights
or warrants referred to in clause (ii) above and (y) cash dividends or
other cash distributions that are paid out of consolidated current net
earnings or earnings retained in the business as shown on the books of the
Issuer), the conversion price shall be adjusted in accordance with the
formula:
M - F
-----
C' = C x M
where:
C' = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of Common
Stock. The Board of Directors of the Issuer (or any duly
authorized committee thereof) shall determine the fair market
The adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive the
distribution to which this clause (iii) applies. For purposes of subclause
(y) above, a cash dividend or other cash distribution shall be deemed to
have been paid out of consolidated current net
26
earnings if the aggregate amount of all such cash dividends and other cash
distributions for any twelve month period do not exceed consolidated
current net earnings for such period.
As used in this clause (iii), "consolidated current net earnings"
means, for any period, the greater of (x) 100% of the real estate
investment trust taxable income (as defined in the Code) of the Issuer and
its consolidated subsidiaries for such period (determined without regard to
the deduction for dividends paid but including net capital gains (as
defined in the Code) for such period), net of applicable taxes, all
computed on a consolidated basis in accordance with the provisions of the
Code and the regulations thereunder applicable at the time of such
computation, and (y) 115% of the sum of cash flow from operations plus
gains (or minus losses, as the case may be) from the sale or other
disposition of real estate, of the Issuer and its consolidated subsidiaries
for such period, determined on a consolidated basis; "cash flow from
operations" means, for any period, consolidated net income (or loss), plus
all non-cash items deducted and minus all non-cash items added to revenues
in determining consolidated net income (loss), and excluding gains and
losses on the sale or other disposition of real estate, of the Issuer and
its consolidated subsidiaries for such period, computed on a consolidated
basis; and "earnings retained in the business" means, at any date,
cumulative cash flow from operations, plus gains on the sale or other
disposition of real estate, minus losses on the sale or other disposition
of real estate, of the Issuer and its consolidated subsidiaries for the
period (the "Subject Period") from May 23, 1985 to such date, less
cumulative dividends and distributions paid on capital stock by the Issuer
and its consolidated subsidiaries during the Subject Period, all determined
on a consolidated basis.
(iv) Solely for the purpose of any computation under clauses
(ii) and (iii) above, the "current market price" per share of the Common
Stock at any date shall be deemed to be the average of the last reported
sale prices of the Common Stock on the New York Stock Exchange Composite
Tape for 30 consecutive trading days commencing 45 trading days before the
date in question. In the absence of one or more such quotations, the Issuer
shall determine the current market price on the basis of such quotations as
it considers appropriate.
(v) No adjustment in the conversion price shall be required
unless such adjustment would require a decrease or, to the extent permitted
by clause (vi) below, increase of at least 1% in such price; provided,
--------
however, that any adjustments which by reason of this clause (v) are not
-------
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 14 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case
may be.
(vi) No upward adjustment in the conversion price will be made
except in the event of a reverse stock split of the Common Stock of the
Issuer. In addition, no adjustment need be made for (x) rights to purchase
Common Stock pursuant to a plan of the Issuer for reinvestment of dividends
on the Common Stock, (y) issuances
27
of shares of Common Stock to officers, directors or employees of the Issuer
pursuant to any benefit plan now in existence or hereafter approved by
shareholders of the Issuer or (z) for a change in par value or no par value
of the Common Stock. To the extent that Notes become convertible into cash,
no adjustment need be made thereafter as to the cash and interest will not
accrue on the cash.
(vii) Whenever the conversion price is adjusted, the Issuer
shall promptly give notice of such adjustments to Noteholders and shall
file with the Fiscal Agent and each Conversion Agent a certificate from the
Issuer's independent public accountants briefly stating the facts requiring
the adjustment and the manner of computing it. The certificate shall be
conclusive evidence that the adjustment is correct.
(viii) The Issuer from time to time may reduce the conversion
price by any amount for any period of time if the period is at least 20
days and if the reduction is irrevocable during the period. Whenever the
conversion price is so reduced, the Issuer shall give notice of such
reduction to Noteholders, the Fiscal Agent and the Conversion Agents at
least 15 days before the date the reduced conversion price takes effect.
The notice shall state the reduced conversion price and the period it will
be in effect. A reduction of the conversion price does not change or adjust
the conversion price otherwise in effect for purposes of calculating
adjustments required pursuant to clauses (i), (ii) and (iii) above.
(ix) If (A) the Issuer takes any action that would require an
adjustment in the conversion price pursuant to clause (i), (ii) or (iii)
above; (B) the Issuer takes any action that would require a supplemental
agreement pursuant to Section 5(f) below; or (C) there is a liquidation or
dissolution of the Issuer, the Issuer shall give notice to Noteholders
stating the proposed record date for a dividend or distribution or the
proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, liquidation or dissolution. The Issuer
shall give the notice at least 15 days before such date. Failure to give
the notice or any defect in it shall not affect the validity of the
transaction.
(f) If the Issuer is a party to a transaction subject to Section 8 of
the Terms or a merger which reclassifies or changes its outstanding Common
Stock, the person obligated to deliver securities, cash or other assets upon
conversion of the Notes shall enter into a supplemental fiscal agency agreement.
If the issuer of securities deliverable upon conversion of the Notes is an
Affiliate (as defined below) of the surviving or transferee corporation, that
issuer shall join in the supplemental fiscal agency agreement. The supplemental
fiscal agency agreement shall provide that the Holder of a Note may convert it
into the kind and amount of securities, cash or other assets which such Holder
would have owned immediately after the consolidation, merger or transfer if such
Holder had converted the Note immediately before the effective date of the
transaction. The supplemental fiscal agency agreement shall provide for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section 14. The successor Issuer shall give
Noteholders a notice briefly describing the supplemental fiscal agency
agreement. The term
28
"Affiliate" means, with respect to any person, any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person. For the purpose 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 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.
If this Section 14(f) applies, Section 14(e)(i) does not apply.
(g) The issue of certificates representing Common Stock on
conversions of the Notes shall be made without charge to the converting Holder
for any tax, duties or other charges except that the converting Holder shall be
required to pay any tax or duty which may be payable in respect of (i) any
transfer involved in the issue and delivery of Common Stock in any name other
than that of the Holder and (ii) any tax arising under Section 897 or 1445 of
the Internal Revenue Code of 1986, without receiving any Additional Amounts with
respect thereto, and the Issuer shall not be required to issue or deliver any
such certificate representing Common Stock unless and until the person or
persons requesting the issue thereof shall have paid to the Issuer the amount of
such tax or duty or shall have established to the satisfaction of the Issuer
that such tax has been paid.
(h) The Issuer shall provide, free from preemptive rights, out of its
authorized but unissued shares, or out of shares held in its treasury,
sufficient shares to provide for the conversion of the Notes from time to time
as such Notes are presented for conversion. Before taking any action which would
cause an adjustment reducing the conversion price below the then par value, if
any, of the Common Stock issuable upon conversion of the Notes, the Issuer will
take all action which may, in the opinion of its counsel, be necessary in order
that the Issuer may validly and legally issue such Common Stock at such adjusted
conversion price. The Issuer covenants that all the Common Stock which may be
issued upon conversion of the Notes will upon issue be duly authorized, validly
issued, fully paid and nonassessable, and free from all preemptive rights. The
Issuer covenants that if any Common Stock to be provided for the purpose of
conversion of the Notes hereunder requires registration, including without
limitation registration pursuant to the 1933 Act, with or approval of any
governmental authority under any Federal or state law before such shares may be
issued upon conversion, the Issuer will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as the case may be.
The Issuer further covenants that, so long as the Common Stock shall be listed
on the New York Stock Exchange or any other national securities exchange in the
United States, if permitted by the rules of such exchange, the Issuer will, in
good faith and as expeditiously as possible, list and keep listed and for sale
so long as the Common Stock shall be so listed on all such exchanges, upon
official notice of issuance, all Common Stock issuable upon conversion of the
Notes.
(i) Neither the Fiscal Agent nor any Conversion Agent shall at any
time be under any duty or responsibility to any Holder of a Note to determine
whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, herein or
29
in any supplemental fiscal agency agreement provided to be employed, in making
the same. Neither the Fiscal Agent nor any Conversion Agent shall be accountable
with respect to the validity or value (or the kind or amount) of any Common
Stock, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Note; and neither the Fiscal Agent nor any
Conversion Agent makes any representation with respect thereto. Neither the
Fiscal Agent nor any Conversion Agent shall be responsible for any failure of
the Issuer to issue, transfer or deliver any Common Stock or other securities or
property or cash upon the surrender of any Notes for the purpose of conversion
or to comply with any of the covenants of the Issuer contained in this Section
14.
(j) Notwithstanding anything to the contrary in this Section 14, a
Holder may not convert any Note, and such Note shall not be convertible by the
Holder if, as a result of such conversion, any person would then beneficially
own, directly or indirectly, more than 9.9% of the outstanding Common Stock of
the Issuer. For purposes of this Section 14(j) calculations as to the Holder's
beneficial ownership of the Common Stock of the Issuer will include shares of
Common Stock issuable upon conversion of Notes owned by such Holder, but shall
exclude shares of Common Stock issuable upon conversion of Notes held by other
persons. Any attempted conversion of Notes by a Holder in contravention of this
Section 14(j) shall be null and void ab initio as to such Holder and neither
-- ------
such Holder nor any intended transferee will acquire any rights or economic
interest in the Common Stock issuable upon conversion. For purposes of the
conversion limitations in this Section 14(j), beneficial ownership shall include
actual ownership as well as constructive ownership as set forth in both Code
Section 544 (as modified by Code Section 856(h)(1)) and Code Section 318(a) (as
modified by Code Section 856(d)(5)). Each Note shall bear a legend setting forth
the foregoing limitation on conversion of Notes.
(k) Any determination that the Issuer, the Board of Directors of the
Issuer or any duly authorized committee of the Board of Directors must make
pursuant to Section 14(c), 14(e)(i), 14(e)(iii) or 14(e)(iv) is conclusive.
(l) As provided in the Terms, delivery of Common Stock upon
conversion of the Notes and payment of cash, if any, in lieu of fractional
shares upon conversion of Notes will be made only upon delivery by the Holder of
a written certification to the effect set forth in clause (B) of the second
paragraph of the form of conversion notice attached as Exhibit G hereto (which
may be the certification set forth on the reverse of the Notes). The Issuer will
provide to the Fiscal Agent and each Conversion Agent an adequate supply of
conversion notices in the form of Exhibit G hereto and will cause them to
provide such forms to Holders upon request.
15. The Issuer will pay all stamp or other documentary taxes or
duties, if any, to which the execution or delivery of this Agreement or the
issuance of the Notes or Coupons may be subject.
16. This Agreement and the Notes and Coupons may be modified or
amended by the parties hereto, without the consent of the Holder of any Note or
Coupon appertaining thereto, for the purpose of (a) adding to the covenants of
the Issuer for the
30
benefit of the Holders of Notes or Coupons or surrendering any right or power
conferred upon the Issuer; (b) providing for the payment of principal and
interest in respect of Bearer Notes in the United States under the circumstances
described on the face of the Bearer Notes or providing for the conversion of
Bearer Notes in the United States under the circumstances described in Section 6
of the Terms; (c) effecting any succession or assumption as described under
paragraph 8(a) of the Terms; (d) providing for the conversion rights of the
Holders of the Notes pursuant to Section 14(f); or (e) curing any ambiguity or
correcting or supplementing any defective provision contained therein or in the
Notes or Coupons or making any other provision which the Issuer and the Fiscal
Agent may deem necessary or desirable and which, in any such case, will not
adversely affect the Holders of the Notes and Coupons in any material respect.
This Agreement may be amended by the parties hereto, with the consent of the
Holders of the Notes as provided in paragraph 10 of the Terms, for any other
purpose.
17. For purposes of determining whether the holders of the requisite
principal amount of Notes have given any consent, request, demand or waiver or
taken any other action under or with respect to this Agreement, the Notes or the
Coupons appertaining thereto, and for purposes of determining whether a quorum
is present at any meeting of Holders, all Notes owned by the Issuer or any of
its "affiliates" (as defined in Rule 405 under the 1933 Act) shall be
disregarded and not deemed outstanding.
18. All notices hereunder shall be deemed to have been given when
sent be certified or registered mail, postage prepaid, addressed to Party hereto
as follows:
Issuer............. Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Attention: Corporate Secretary
Fiscal Agent....... Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Department
or at any other address of which either of the foregoing shall have notified the
other in writing.
19. This Agreement, the Notes and the Coupons shall be construed in
accordance with and governed by the laws of the State of California.
20. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Such counterparts shall together
constitute but one and the same instrument.
31
21. The Issuer hereby confirms that it has appointed Chemical Bank,
at its office in The City of New York, as Registrar and as a Paying Agent,
Transfer Agent and Conversion Agent; Chemical Bank at its London office as a
Paying Agent, Transfer Agent and Conversion Agent; and Banque Internationale a
Luxembourg S.A. at its Luxembourg office, as a Paying Agent, Transfer Agent and
Conversion Agent, subject in each case to the Company's right to remove the
Registrar or any such agent or to appoint co-Registrars and other such agents,
and to vary the terms of appointment and the office through which the Registrar
or any such agent acts, all on the terms provided in this Agreement and the
Notes.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under its seal as of the day and year first above written.
HEALTH CARE PROPERTY
INVESTORS, INC.
[SEAL]
by ____________________________
Title:
CHEMICAL BANK
by ____________________________
Title:
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
HEALTH CARE PROPERTY
INVESTORS, INC.
[SEAL]
by ____________________________
Title:
CHEMICAL BANK
by ____________________________
Title:
34
EXHIBIT A-1
[FORM OF FACE OF DEFINITIVE BEARER NOTE]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THE ISSUER, THE REGISTRAR AND ANY TRANSFER AGENT MAY REFUSE TO
EXCHANGE OR REGISTER THE TRANSFER OF ANY OF THE ISSUER'S 6% CONVERTIBLE
SUBORDINATED NOTES DUE 2000 (THE "NOTES") IF SUCH TRANSFER (A) WOULD, OR IN THE
DETERMINATION OF THE BOARD OF DIRECTORS OF THE ISSUER MIGHT, RESULT IN A SINGLE
PERSON BENEFICIALLY OWNING (OR UPON CONVERSION OF ANY NOTES THEREUPON OWNING)
DIRECTLY OR INDIRECTLY MORE THAN 9.9% OF THE ISSUER'S COMMON STOCK (INCLUDING
COMMON STOCK ISSUABLE UPON CONVERSION OF NOTES HELD BY THAT PERSON BUT NOT
COMMON STOCK ISSUABLE UPON CONVERSION OF NOTES HELD BY OTHERS) OR (B) WOULD
CAUSE THE ISSUER TO FAIL TO MEET ANY REQUIREMENT NECESSARY FOR THE CONTINUED
QUALIFICATION OF THE ISSUER AS A REAL ESTATE INVESTMENT TRUST UNDER THE CODE. IN
ADDITION, THE HOLDER HEREOF MAY NOT CONVERT THIS NOTE, AND THIS NOTE SHALL NOT
BE CONVERTIBLE BY THE HOLDER, IF AS A RESULT OF SUCH CONVERSION ANY PERSON WOULD
BENEFICIALLY OWN, DIRECTLY OR INDIRECTLY, MORE THAN 9.9% OF THE ISSUER'S
OUTSTANDING COMMON STOCK. ANY EXCHANGE OR REGISTRATION OF TRANSFER OF THIS NOTE
IN CONTRAVENTION OF THE SECOND PRECEDING SENTENCE, OR ATTEMPTED CONVERSION OF
THIS NOTE IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING SENTENCE, SHALL BE NULL
AND VOID AB INITIO AS TO THE HOLDER, THE TRANSFEROR AND THE INTENDED TRANSFEREE,
AS THE CASE MAY BE, OF THIS NOTE, AND, IN THE CASE OF AN ATTEMPTED EXCHANGE OR
REGISTRATION OF TRANSFER, THE INTENDED TRANSFEREE WILL ACQUIRE NO RIGHTS OR
ECONOMIC INTERESTS WHATSOEVER IN THIS NOTE AND, IN THE CASE OF AN ATTEMPTED
CONVERSION, NEITHER THE HOLDER NOR ANY INTENDED TRANSFEREE WILL ACQUIRE ANY
RIGHTS OR ECONOMIC INTERESTS IN THE COMMON STOCK OF THE ISSUER ISSUABLE UPON
SUCH CONVERSION. FOR PURPOSES OF THIS PARAGRAPH, BENEFICIAL OWNERSHIP SHALL
INCLUDE ACTUAL OWNERSHIP AS WELL AS CONSTRUCTIVE OWNERSHIP AS SET FORTH IN BOTH
CODE SECTION 544 (AS MODIFIED BY CODE SECTION 856(h)(1)) AND CODE SECTION 318(a)
(AS MODIFIED BY CODE SECTION 856(d)(5)).
A-1-1
No. B- U.S. $5,000
HEALTH CARE PROPERTY INVESTORS, INC.
6% Convertible Subordinated Notes due 2000
HEALTH CARE PROPERTY INVESTORS, INC., a corporation duly organized and
existing under the laws of the State of Maryland (the "Issuer," which term
includes any successor thereto under the terms of the Notes and the Fiscal
Agency Agreement), for value received, hereby promises to pay to the bearer upon
presentation and surrender hereof the principal sum of FIVE THOUSAND UNITED
STATES DOLLARS (U.S. $5,000) on November 8, 2000, and to pay interest, semi-
annually in arrears on May 8 and November 8 of each year (each, an "Interest
Payment Date"), commencing May 8, 1994, on said principal sum at the rate of 6%
per annum, calculated based upon a 360-day year of twelve thirty-day months,
from and including the date hereof until payment of said principal sum has been
made or duly provided for. Such payments shall be made, subject to any laws or
regulations applicable thereto and to the right of the Issuer (limited as
provided in the Fiscal Agency Agreement) to terminate the appointment of any
such Paying Agent, at the office of Chemical Bank, London office or at the
office of Banque Internationale a Luxembourg S.A., Luxembourg office, or at such
other offices or agencies outside the United States (as defined below) as the
Issuer may designate, and at which, at the option of the Holder, such payment
will be made either by United States Dollar check drawn on a bank in The City of
New York or (upon receipt by the Fiscal Agent or a Paying Agent of appropriate
transfer instructions) by transfer to a United States Dollar account maintained
by the Holder hereof with a bank located outside the United States. Interest on
this Note due on or before maturity shall be payable only upon presentation and
surrender at such an office or agency of the interest coupons hereto attached as
they severally mature; provided, however, that interest accrued from and
-------- -------
including the Interest Payment Date next preceding any Redemption Date for this
Note, if such Redemption Date is not an Interest Payment Date, shall be paid
only upon presentation and surrender of this Note. No payment of principal of or
interest on this Note shall be made at the Corporate Trust Office of the Fiscal
Agent under the Fiscal Agency Agreement or at any other office or agency of the
Issuer 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 payment of principal of and interest on this
-------- -------
Note may be made at the Corporate Trust Office of the Fiscal Agent in The City
of New York, if (but only if) payment of the full amount of such principal or
interest, as the case may be, at all offices outside the United States
maintained for such purpose by the Issuer in accordance with the Fiscal Agency
Agreement is illegal or effectively precluded because of exchange controls or
other similar restrictions on the full payment or receipt of such amounts in
United States Dollars, as determined by the Issuer.
For purposes of this Note, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction, and a "United
States Alien" means any person that, for United States federal income tax
purposes, is neither treated as a citizen or resident of the
A-1-2
United States, nor a corporation, partnership or other entity created or
organized in or under the laws of the United States or of any political
subdivision thereof nor an estate or trust the income of which is subject to
United States federal income tax regardless of source.
The Terms and Conditions of the Notes endorsed on the reverse hereof
shall for all purposes have the same effect as though fully set forth at this
place, and capitalized terms used above and not otherwise defined shall have the
meanings ascribed thereto in such Terms and Conditions. All references herein to
"dollars," "Dollars," "$" and "U.S. $" are to such coin or currency of the
United States of America as at the time shall be legal tender for payment of
public and private debts.
Neither this Note nor any interest coupon attached hereto shall be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Fiscal Agent.
IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC. has caused
this instrument to be duly executed under its seal and duly executed interest
coupons to be attached hereto.
Dated: November 8, 1993
HEALTH CARE PROPERTY
INVESTORS, INC.
[SEAL]
By_________________________________
Title:
By_________________________________
Title:
A-1-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Fiscal
Agency Agreement.
CHEMICAL BANK,
as Fiscal Agent
By:________________________________
Authorized Officer
A-1-4
EXHIBIT A-2
[FORM OF FACE OF DEFINITIVE REGISTERED NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION./1/
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE EXCHANGE DATE (AS
DEFINED IN THE FISCAL AGENCY AGREEMENT REFERRED TO HEREIN) AND THE LAST DATE ON
WHICH THE ISSUER OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 PROMULGATED UNDER
THE 1933 ACT) OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
THIS NOTE) ONLY TO A PERSON THAT IS NOT AN "AFFILIATE" OR ACTING ON BEHALF OF AN
"AFFILIATE" OF THE ISSUER AND ONLY (A) TO THE ISSUER, (E) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (C)
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE 1933 ACT, (E) TO AN INSTITUTIONAL INVESTOR
WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE
NOTE FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE 1933
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT (SUBJECT IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF A TRANSFEREE'S PROPERTY BE AT ALL
TIMES WITHIN ITS CONTROL), AND SUBJECT TO THE ISSUER'S, THE REGISTRAR'S AND ANY
TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES A CERTIFICATE IN THE FORM
_____________________
1. For inclusion on Restricted Notes (as defined in Section 4(e) of the Fiscal
Agency Agreement referred to on the reverse hereof) only.
A-2-1
APPEARING ON THE REVERSE OF THIS NOTE IS DELIVERED BY THE TRANSFEROR TO THE
REGISTRAR OR A TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE./1/
THE ISSUER, THE REGISTRAR AND ANY TRANSFER AGENT MAY REFUSE TO
EXCHANGE OR REGISTER THE TRANSFER OF ANY OF THE ISSUER'S 6% CONVERTIBLE
SUBORDINATED NOTES DUE 2000 (THE "NOTES") IF SUCH TRANSFER (A) WOULD, OR IN THE
DETERMINATION OF THE BOARD OF DIRECTORS OF THE ISSUER MIGHT, RESULT IN A SINGLE
PERSON BENEFICIALLY OWNING (OR UPON CONVERSION OF ANY NOTES THEREUPON OWNING)
DIRECTLY OR INDIRECTLY MORE THAN 9.9% OF THE ISSUER'S COMMON STOCK (INCLUDING
COMMON STOCK ISSUABLE UPON CONVERSION OF NOTES HELD BY THAT PERSON BUT NOT
COMMON STOCK ISSUABLE UPON CONVERSION OF NOTES HELD BY OTHERS) OR (B) WOULD
CAUSE THE ISSUER TO FAIL TO MEET ANY REQUIREMENT NECESSARY FOR THE CONTINUED
QUALIFICATION OF THE ISSUER AS A REAL ESTATE INVESTMENT TRUST UNDER THE UNITED
STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). IN ADDITION, THE
HOLDER HEREOF MAY NOT CONVERT THIS NOTE, AND THIS NOTE SHALL NOT BE CONVERTIBLE
BY THE HOLDER, IF AS A RESULT OF SUCH CONVERSION ANY PERSON WOULD BENEFICIALLY
OWN, DIRECTLY OR INDIRECTLY, MORE THAN 9.9% OF THE ISSUER'S OUTSTANDING COMMON
STOCK. ANY EXCHANGE OR REGISTRATION OF TRANSFER OF THIS NOTE IN CONTRAVENTION
OF THE SECOND PRECEDING SENTENCE, OR ATTEMPTED CONVERSION OF THIS NOTE IN
CONTRAVENTION OF THE IMMEDIATELY PRECEDING SENTENCE, SHALL BE NULL AND VOID AB
INITIO AS TO THE HOLDER, THE TRANSFEROR AND THE INTENDED TRANSFEREE, AS THE CASE
MAY BE, OF THIS NOTE, AND, IN THE CASE OF AN ATTEMPTED EXCHANGE OR REGISTRATION
OF TRANSFER, THE INTENDED TRANSFEREE WILL ACQUIRE NO RIGHTS OR ECONOMIC
INTERESTS WHATSOEVER IN THIS NOTE AND, IN THE CASE OF AN ATTEMPTED CONVERSION,
NEITHER THE HOLDER NOR ANY INTENDED TRANSFEREE WILL ACQUIRE ANY RIGHTS OR
ECONOMIC INTERESTS IN THE COMMON STOCK OF THE ISSUER ISSUABLE UPON SUCH
CONVERSION. FOR PURPOSES OF THIS PARAGRAPH, BENEFICIAL OWNERSHIP SHALL INCLUDE
ACTUAL OWNERSHIP AS WELL AS CONSTRUCTIVE OWNERSHIP AS SET FORTH IN BOTH CODE
SECTION 544 (AS MODIFIED BY CODE SECTION 856(h)(1)) AND CODE SECTION 318(a) (AS
MODIFIED BY CODE SECTION 856(d)(5)).
THIS NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE.
A-2-2
No. R- U.S. $__________/2/
HEALTH CARE PROPERTY INVESTORS, INC.
6% Convertible Subordinated Notes due 2000
HEALTH CARE PROPERTY INVESTORS, INC., a corporation duly organized and
existing under the laws of the State of Maryland (the "Issuer," which term
includes any successor thereto under the terms of the Fiscal Agency Agreement),
for value received, hereby promises to pay to __________, or registered assigns,
upon surrender hereof the principal sum of ___________ THOUSAND UNITED STATES
DOLLARS (U.S. $ ___,000) on November 8, 2000, and to pay interest, semi-annually
in arrears on May 8 and November 8 of each year (each, an "Interest Payment
Date"), commencing May 8, 1994, on said principal sum at the rate of 6% per
annum, calculated based upon a 360-day year of twelve thirty-day months, from
and including the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for
on this Note, from and including November 8, 1993, until payment of said
principal sum has been made or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Fiscal Agency Agreement, be paid to the person in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date (whether or not such day is a Business Day)
for such interest, which shall be the April 23 or October 24 immediately
preceding the relevant Interest Payment Date, except that any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Fiscal Agent (a "Special Record Date"), notice
whereof shall be given to Holders of Registered Notes not less than 15 days
prior to such Special Record Date, such Special Record Date to be not less than
10 days preceding the date of payment of such defaulted interest, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange. Payments of principal shall be made upon
the surrender of this Note at the Corporate Trust Office of the Fiscal Agent in
The City of New York or, subject to any applicable laws and regulations, at the
offices of Paying Agents that are also Transfer Agents, by United States Dollar
check drawn on, or (upon receipt by the Fiscal Agent or a Paying Agent of
appropriate transfer instructions) by transfer to a United States Dollar account
maintained by the Holder with, a bank in The City of New York. Payment of
interest on this Note may be made by United States Dollar check drawn on a bank
in The City of New York mailed to the address of the Holder entitled thereto as
such address shall appear in the Note Register or, upon application
_________________________
2. Denominations of U.S. $1,000 and integral multiples thereof, except for
Registered Notes which are Restricted Notes under Section 4(e) of the
Fiscal Agency Agreement, which shall be issued in denominations of U.S.
$250,000 and integral multiples of U.S. $1,000 in excess thereof.
A-2-3
by the Holder to the Registrar not later than the Regular Record Date
immediately preceding the relevant Interest Payment Date, by transfer to a
United States Dollar account (such transfers to be made only to Holders of an
aggregate principal amount of Registered Notes of U.S. $5,000,000 or more)
maintained by the Holder with a bank in The City of New York.
For purposes of this Note, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction, and a "United
States Alien" means any person that, for United States federal income tax
purposes, is neither treated as a citizen or resident of the United States, nor
a corporation, partnership or other entity created or organized in or under the
laws of the United States or of any political subdivision thereof, nor an estate
or trust the income of which is subject to United States federal income tax
regardless of source.
The Terms and Conditions of the Notes endorsed on the reverse hereof
shall for all purposes have the same effect as though fully set forth at this
place, and capitalized terms used above but not otherwise defined shall have the
meanings ascribed thereto in such Terms and Conditions. All references herein
to "dollars," "Dollars," "$" and "U.S. $" are to such coin or currency of the
United States of America as at the time shall be legal tender for payment of
public and private debts.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Fiscal Agent.
A-2-4
IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC. has caused
this instrument to be duly executed under its seal.
Dated:
HEALTH CARE PROPERTY
INVESTORS, INC.
[SEAL]
By___________________________________
Title:
By___________________________________
Title:
A-2-5
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Fiscal
Agency Agreement.
CHEMICAL BANK,
as Fiscal Agent
By:__________________________________
Authorized Officer
A-2-6
EXHIBIT B
[FORM OF REVERSE OF DEFINITIVE NOTE]
TERMS AND CONDITIONS OF THE NOTES
1. General. (a) This Note is one of a duly authorized issue of
-------
debt securities of the Issuer, designated as its 6% Convertible Subordinated
Notes due 2000 (the "Notes"), limited to the aggregate principal amount of U.S.
$100,000,000 and issued or to be issued pursuant to a Fiscal Agency Agreement
(as amended or supplemented from time to time, the "Fiscal Agency Agreement")
dated as of November 8, 1993 between the Issuer and Chemical Bank, as fiscal
agent (the "Fiscal Agent," which term shall include its successors as fiscal
agent). The Holders of the Notes will be entitled to the benefits of, be bound
by, and be deemed to have notice of, all of the provisions of the Fiscal Agency
Agreement. A copy of the Fiscal Agency Agreement is on file and may be inspected
at the Corporate Trust Office of the Fiscal Agent and at the offices of the
Paying Agents referred to below.
(b) The Notes are issuable in bearer form, with interest
coupons attached, in denominations of U.S. $5,000 (the "Bearer Notes"), and in
fully registered form without interest coupons, in the denominations of U.S.
$1,000 and integral multiples thereof (the "Registered Notes"), except that
Registered Notes which constitute Restricted Notes shall be issuable in minimum
denominations of U.S. $250,000 and integral multiples of U.S. $1,000 in excess
thereof and shall contain certain restrictions on transfer. The Bearer Notes are
bearer instruments, title to which (including title to any and all interest
coupons appertaining thereto) passes by delivery. The Registered Notes, and
transfers thereof, shall be registered as provided in paragraph 9 hereof and in
the Fiscal Agency Agreement. The bearer of any Bearer Note, the bearer of any
interest coupon and any person in whose name a Registered Note shall be
registered may (to the fullest extent permitted by applicable laws) be treated
at all times, by all persons and for all purposes, as the absolute owner of such
Note or interest coupon, as the case may be, whether or not such Note or
interest coupon shall be overdue, and regardless of any notice of ownership,
theft, loss or other interest therein or of any writing thereon.
2. Subordination. (a) The Notes shall be subordinated and subject,
-------------
to the extent and in the manner hereinafter set forth, in right of payment to
the prior payment in full of all Senior Indebtedness. The term "Senior
Indebtedness" means the principal of, premium, if any, and interest on, or
substantially similar payments to be made by the Issuer in respect of, the
following, whether outstanding at the date of execution of the Fiscal Agency
Agreement or thereafter incurred, created or assumed: (a) indebtedness of the
Issuer for money borrowed or represented by purchase money obligations, (b)
indebtedness of the Issuer evidenced by notes, debentures, bonds, or other
securities issued under the provisions of an indenture, fiscal agency agreement
or other instrument, (c) obligations of the Issuer as lessee under leases of
property either made as part of any sale and lease-back
B-1
transaction to which the Issuer is a party or otherwise, (d) indebtedness of
partnerships and joint ventures which is included in the Issuer's consolidated
financial statements, (e) indebtedness, obligations and liabilities of others in
respect of which the Issuer is liable contingently or otherwise to pay or
advance money or property or as guarantor, endorser or otherwise or which the
Issuer has agreed to purchase or otherwise acquire (but excluding endorsements
for collection in the ordinary course of business) and (f) any refunding or
refinancing of any such indebtedness, obligation or liability described in
clauses (a) through (e) above, but excluding, however, (1) any such
indebtedness, obligation or liability referred to in clauses (a) through (f)
above as to which, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such indebtedness,
obligation or liability is not superior in right of payment to the Notes or
ranks pari passu with or junior to the Notes, (2) any such indebtedness,
---- -----
obligation or liability which is subordinated to indebtedness of the Issuer to
substantially the same extent as or to a greater extent than the Notes are
subordinated, and (3) the Notes. As used in the preceding sentence the term
"purchase money obligations" shall mean indebtedness or obligations evidenced by
a note, debenture, bond or other instrument (whether or not secured by any lien
or security interest but excluding indebtedness or obligations for which
recourse is limited to the property purchased) issued or assumed as all or a
part of the consideration for the acquisition of property, whether by purchase,
merger, consolidation or otherwise, but shall not include any trade accounts
payable.
(b) (i) Upon the maturity of any Senior Indebtedness by
lapse of time, acceleration or otherwise, all such Senior Indebtedness shall
first be paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holder or holders of such Senior Indebtedness, before any
payment is made on account of the principal of or interest on the Notes or to
acquire any of the Notes.
(ii) During the continuance of any default with
respect to Senior Indebtedness entitling the holders thereof to accelerate the
maturity thereof, or if any such default would be caused by any payment upon or
in respect of the Notes, and, if the default is other than default in payment of
the principal of, or premium, if any, or interest on, such Senior Indebtedness,
upon written notice thereof given to the Issuer by a holder or holders of such
Senior Indebtedness or their representative or representatives, then, unless and
until such default shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Issuer upon or in respect of the Notes.
The Issuer shall give prompt written notice to the Fiscal Agent of any default
under any Senior Indebtedness or under any agreement pursuant to which the
Senior Indebtedness may have been issued.
(c) Upon any distribution of assets of the Issuer in any
dissolution, winding up, liquidation or reorganization of the Issuer whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise):
(i) the holders of all Senior Indebtedness shall
first be entitled to receive payment in full of the principal thereof and
premium, if any, and the interest due thereon before the Holders of the Notes
are entitled to receive any payment on account of the principal of or interest
on the Notes;
B-2
(ii) any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes would be entitled except for the provisions of
this paragraph 2, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or other trustee or agent, directly to the
holders of the Senior Indebtedness, or their representative or representatives
or to the trustee or trustees or fiscal agent or fiscal agents under any
indenture or any other agreement (if any) under which any instruments evidencing
any of such Senior Indebtedness may have been issued, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution or provision therefor to the
holders of such Senior Indebtedness; and
(iii) in the event that notwithstanding the foregoing
provisions of this paragraph 2(c), any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, shall
be received by the Holders of the Notes on account of principal of or interest
on the Notes before all Senior Indebtedness is paid in full, or effective
provision made for its payment, such payment or distribution shall be received
and held in trust for and shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their representative or
representatives or to the trustee or trustees or fiscal agent or fiscal agents
under any indenture or any other agreement (if any) under which any instruments
evidencing any of such Senior Indebtedness may have been issued, for application
to the payment of such Senior Indebtedness until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution or provision therefor to the holders of such Senior Indebtedness.
(d) Subject to the payment in full of all Senior
Indebtedness, the Holders of the Notes shall be subrogated to the rights of the
holders of the Senior Indebtedness to receive payments or distributions of
assets of the Issuer applicable to the Senior Indebtedness until all amounts
owing on the Notes shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Issuer or by or on behalf of the Holders of
the Notes by virtue of this paragraph 2 which otherwise would have been made to
the Holders of the Notes shall, as between the Issuer and the Holders of the
Notes, be deemed to be payments by the Issuer to or on account of the Notes, it
being understood that the provisions of this paragraph 2 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes, on the one hand, and the holders of the Senior Indebtedness, on the other
hand.
(e) Nothing contained in this paragraph 2 is intended to or
shall impair, as between the Issuer and the Holders of the Notes, the obligation
of the Issuer, which is absolute and unconditional, to pay to the Holders of the
Notes the principal of and interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Notes and creditors of
the Issuer other than the holders of the Senior Indebtedness, nor shall anything
herein prevent the Holder of any Note from exercising all remedies otherwise
B-3
permitted by applicable law upon default under the Fiscal Agency Agreement or
the Notes, subject to the rights, if any, under this paragraph 2 of the holders
of the Senior Indebtedness in respect of cash, property or securities of the
Issuer received upon the exercise of any such remedy. Upon any distribution of
assets of the Issuer referred to in this paragraph 2, the Holders of the Notes,
the Fiscal Agent and any Paying Agents of the Issuer shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this paragraph 2.
(f) Nothing contained in this paragraph 2 or in the Fiscal
Agency Agreement shall prevent the application by the Fiscal Agent or any Paying
Agent of any moneys deposited with it pursuant to the Fiscal Agency Agreement to
the payment of or on account of the principal of or interest on the Notes if, at
the time of such deposit, the Fiscal Agent or any such Paying Agent did not have
actual knowledge that such payment would have been prohibited by the foregoing
provisions of this paragraph 2.
(g) No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Issuer or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Issuer with the terms, provisions and covenants
hereof, regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
(h) The failure by the Issuer to make a payment on account
of principal of or interest on the Notes by reason of any provision in this
paragraph 2 shall not be construed as preventing the occurrence of an Event of
Default under paragraph 7 hereof.
(i) This paragraph 2 shall not apply to the obligations of
the Issuer to the Fiscal Agent and other agents of the Issuer pursuant to
Section 10(a) of the Fiscal Agency Agreement.
3. Payments and Paying Agents. (a) Except as otherwise provided on
--------------------------
the face of the Bearer Notes, principal of and interest on the Bearer Notes and
interest coupons will be payable in U.S. dollars only upon presentation and
surrender of the Bearer Notes or interest coupons, as the case may be, subject
to any applicable laws and regulations, at the offices of such Paying Agents
outside the United States as the Issuer may appoint from time to time. At the
option of the Holder and subject to applicable laws and regulations, such
payments will be made by a United States Dollar check drawn on a bank in The
City of New York or (upon receipt by the Fiscal Agent or a Paying Agent of
appropriate transfer instructions) by transfer to a United States Dollar account
maintained by the Holder hereof with a bank located outside the United States.
Except as otherwise provided on the face of the Bearer Notes, no payment on any
Bearer Note or interest coupon will be made at
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the Corporate Trust Office of the Fiscal Agent or any other office or agency
maintained by the Issuer in the United States nor will any such payment be made
by check mailed to any address, or by transfer to an account maintained with a
bank located, in the United States.
(b) Principal on the Registered Notes will by payable in
U.S. dollars against surrender of such Registered Notes at the Corporate Trust
Office of the Fiscal Agent in The City of New York or, subject to applicable
laws and regulations, at the office of any Paying Agent that is also a Transfer
Agent, by U.S. dollar check drawn on, or (upon receipt by the Fiscal Agent or a
Paying Agent of appropriate transfer instructions) by transfer to a U.S. dollar
account maintained by the Holder with, a bank located in The City of New York.
Except as otherwise provided on the face of the Restricted Notes with respect to
defaulted interest, payment of any installment of interest on a Registered Note
will be made to the person in whose name such Note (or one or more predecessor
Notes) is registered at the close of business on April 23 or October 24 (whether
or not a Business Day) (each, a "Regular Record Date") immediately preceding the
relevant Interest Payment Date. Payment of such interest will be made by a U.S.
dollar check drawn on a bank located in The City of New York mailed to the
Holder entitled thereto at such Holder's address as it appears in the Note
Register or, upon application by the Holder to the Registrar not later than the
Regular Record Date immediately preceding the relevant Interest Payment Date, by
transfer to a U.S. dollar account (such transfer to be made only to Holders of
an aggregate principal amount of Registered Notes of $5,000,000 or more)
maintained by the Holder with a bank in The City of New York.
(c) The Issuer has initially appointed the Paying Agents,
Transfer Agents, Conversion Agents and Registrar listed at the foot of this
Note. The Issuer may at any time terminate the appointment of the Fiscal Agent,
any Paying Agent, Transfer Agent, Conversion Agent or the Registrar and appoint
a successor Fiscal Agent, a successor Registrar or co-Registrars and additional
or other Paying Agents, Transfer Agents and Conversion Agents and approve any
change in the office through which the Fiscal Agent, any Paying Agent, Transfer
Agent, Conversion Agent or the Registrar acts; provided, however, that until all
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of the Notes have been delivered to the Fiscal Agent for cancellation, or moneys
sufficient to pay the principal of and interest on the Notes have been made
available for such payment and either paid or returned to the Issuer as provided
in the Fiscal Agency Agreement, the Issuer will maintain a Fiscal Agent having a
Corporate Trust Office in The City of New York and a Registrar and Transfer
Agent having a specified office in The City of New York, a Paying Agent and a
Conversion Agent having specified offices in The City of New York only for
(except as otherwise provided herein or in the Fiscal Agency Agreement) payments
with respect to Registered Notes and for the surrender of Registered Notes for
conversion, and a Paying Agent, a Conversion Agent and a Transfer Agent having
specified offices in London and such other European cities specified by the
Issuer for payments with respect to Bearer Notes and interest coupons and for
surrender of Bearer Notes for conversion, provided that, so long as the Notes
are listed by the Issuer on the Luxembourg Stock Exchange and such Exchange so
requires, the Issuer will maintain a Paying Agent, a Conversion Agent and a
Transfer Agent in Luxembourg. Notice of any such termination or appointment of
any change in the office through which the Fiscal Agent,
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any Paying Agent, Transfer Agent, Conversion Agent or any Registrar will act
will be promptly given in the manner described in paragraph 13 hereof.
(d) All moneys deposited by the Issuer with the Fiscal
Agent or with any Paying Agent or then held by the Issuer in trust for payment
of the principal of or interest on any Note and remaining unclaimed for two
years after such principal or interest (including sums deducted from payment
upon redemption of Bearer Notes pursuant to paragraph 5(e)) shall have become
due and payable shall be repaid to the Issuer upon its written request and, to
the extent permitted by law, the Holder of such Note or any interest coupon
appertaining thereto thereafter may look only to the Issuer for payment thereof
without interest; provided, however, that all such amounts payable in respect of
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Bearer Notes will be payable outside the United States within the meaning of
Section 1.163-5(c)(2)(v) of the United States Treasury regulations.
(e) Should the Issuer at any time default in the payment of
any principal of or interest on this Note, the Issuer will pay interest on the
amount in default (to the extent permitted by law in the case of interest on
interest) at the rate of 6% per annum, calculated based upon a 360-day year of
twelve thirty-day months.
(f) Each Holder of a Note and the Fiscal Agent each
recognizes and agrees that the obligations of the Issuer under the Fiscal Agency
Agreement and the Notes and all documents delivered in the name of the Issuer in
connection therewith do not and shall not constitute personal obligations of the
directors, officers, employees, agents or shareholders of the Issuer and shall
not involve any claim against or personal liability on the part of any of them,
and that all persons, including the Holders and the Fiscal Agent, shall look
solely to the assets of the Issuer for the payment of any claim thereunder or
hereunder or for the performance thereof or hereof and shall not seek recourse
against such directors, officers, employees, agents or shareholders of the
Issuer or any of them or any of their personal assets for such satisfaction.
4. Additional Amounts. The Issuer will pay to the Holder of any
------------------
Note or any interest coupon who is a United States Alien, as additional
interest, such amounts ("Additional Amounts") as may be necessary so that every
net payment on such Note or coupon (including payment of the principal of and
interest on such Note and payment through the delivery of Common Stock (and cash
in lieu of fractional shares) upon conversion but not including any payment with
respect to such Common Stock), after deduction or withholding for or on account
of any present or future tax, assessment or other governmental charge imposed
upon or as result of such payment by the United States (or any political
subdivision or taxing authority thereof or therein), will not be less than the
amount provided in such Note or coupon to be then due and payable; provided,
--------
however, that the foregoing obligation to pay Additional Amounts will not apply
- -------
to:
(a) any tax, assessment or other governmental charge that would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder or beneficial owner of such Note (or between
a fiduciary, settlor or beneficiary of, or a person holding a power over,
such
B-6
Holder, if such Holder is an estate or a trust, or a member or shareholder
of such Holder, if such Holder is a partnership or a corporation) and the
United States or any taxing authority thereof or therein, including without
limitation such Holder (or such fiduciary, settlor, beneficiary, person
holding a power, member or shareholder) being or having been a citizen or
resident of the United States or treated as a resident thereof, or being or
having been engaged in a trade or business or present therein, or having or
having had a permanent establishment therein, or (ii) such Holder's or
beneficial owner's past or present status as a personal holding company, a
foreign personal holding company with respect to the United States, a
private foundation or other tax-exempt organization with respect to the
United States, a controlled foreign corporation for United States tax
purposes or as a corporation that accumulates earnings to avoid United
States federal income tax;
(b) any estate, inheritance, gift, excise, sales, transfer or
personal property tax or any similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge that would not
have been imposed but for the presentation by the Holder of a Note or
coupon for payment more than 10 days after the date on which such payment
became due and payable or the date on which payment thereof was duly
provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments on a Note or coupon;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment on a Note or coupon, if such
payment can be made without such withholding by any other Paying Agent in
Europe;
(f) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the
United States of the Holder or beneficial owner of a Note or coupon if,
without regard to any tax treaty, such compliance is required by statute or
regulation of the United States as a precondition to relief or exemption
from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed on a
Holder that actually or constructively owns 10% or more of the combined
voting power of all classes of capital stock of the Issuer (including by
virtue of the right to convert Notes) or that is a controlled foreign
corporation related to the Issuer through stock ownership;
B-7
(h) any tax, assessment or other governmental charge which would not
have been imposed but for the fact that such Note constitutes a "United
States real property interest" as defined in Section 897(c)(1) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), with
respect to the beneficial owner of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) and
(h);
nor shall Additional Amounts be paid with respect to a payment on a Note or
coupon to a Holder that is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to Additional Amounts (or payment of Additional
Amounts would not have been necessary) had such beneficiary, settlor, member or
beneficial owner been the Holder of such Note or coupon. "United States" and
"United States Alien" have the respective meanings set forth on the face of this
Note.
Whenever in the Fiscal Agency Agreement, the Notes or any interest coupon
there is mentioned, in any context, the payment of principal of or interest on,
or in respect of, such Note or coupon, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this paragraph 4
and paragraph 5(c) (it being understood that the term "Additional Amounts"
includes Additional Amounts" payable pursuant to paragraph 5(c)) to the extent
that in such context Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph 4 or paragraph 5(c), as the
case may be.
5. Redemption. (a) The Notes may be redeemed at the option of the
----------
Issuer, in whole or in part, upon not more than 60 nor less than 30 days' notice
prior to the date fixed for redemption (any date designated for redemption in a
notice pursuant to this paragraph 5 is hereinafter referred to as a "Redemption
Date"), which notice will be irrevocable, at any time on or after November 15,
1998, at a redemption price equal to 100% of the principal amount thereof plus
accrued interest thereon to the Redemption Date.
(b) The Notes may also be redeemed at the option of the
Issuer, in whole but not in part, at any time, upon not more than 60 nor less
than 30 days' notice prior to the Redemption Date (which notice will be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof plus accrued interest thereon to the Redemption Date together with any
Additional Amounts, if the Issuer has or will become obligated to pay such
Additional Amounts or there is a substantial probability (in the written opinion
of independent counsel selected by the Issuer, which counsel is reasonably
acceptable to the Fiscal Agent) that the Issuer will be required to pay such
Additional Amounts as a result of any change in, or amendment to, the laws (or
any regulations (including proposed regulations) or rulings promulgated
thereunder) of the United States or any taxing authority thereof or therein, or
any change in, or amendment to, the application or official interpretation of
such laws, regulations or rulings (including a holding by a court of competent
jurisdiction) or any other action taken by a taxing authority or court in the
United
B-8
States (whether or not taken with respect to the Issuer), which change,
amendment or action becomes effective after October 25, 1993, and such
obligation cannot be avoided by the Issuer taking reasonable measures available
to it, not including assigning or transferring the Issuer's obligations under
the Notes to another obligor; provided, that (1) no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to pay any such Additional Amounts were the Issuer to
make a payment in respect of the Notes and (2) at the time such notice of
redemption is given, the obligation to pay such Additional Amounts (at the time
of payments in respect of the Notes) remains in effect. Prior to the giving of
any notice of redemption pursuant to this paragraph 5(b), the Issuer shall
deliver to the Fiscal Agent (a) a certificate stating that the conditions
precedent to the right of the Issuer so to redeem have occurred and setting
forth a statement of facts showing that such conditions precedent have occurred
and (b) a written opinion of independent counsel selected by the Issuer, which
counsel shall be reasonably acceptable to the Fiscal Agent, to the effect that
the Issuer has or will become obligated to pay such Additional Amounts (at the
time of payments in respect of the Notes) as a result of such change, amendment
or action. The Issuer's right to redeem the Notes shall continue as long as the
Issuer is obligated to pay such Additional Amounts, notwithstanding that the
Issuer shall have theretofore made payments of Additional Amounts.
(c) In addition, if the Issuer shall determine, based upon
the written opinion of independent counsel selected by the Issuer, which counsel
is reasonably acceptable to the Fiscal Agent, that any payment made outside the
United States by the Issuer or any of its Paying Agents of the full amount of
principal or interest due in respect of any Bearer Note or interest coupon
would, under any laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Issuer, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Note or coupon that is a United
States Alien (other than such a requirement (a) that would not be applicable to
a payment made by the Issuer or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee or
other agent certifying that the beneficial owner is a United States Alien,
provided that, in each case referred to in clause (a)(ii) or (b), payment by
such custodian, nominee or agent to such beneficial owner is not otherwise
subject to any such requirement or (c) which would not be applicable but for the
fact that such Bearer Note constitutes a "United States real property interest,"
as defined in Section 897(c)(1) of the Code, with respect to the beneficial
owner of such Bearer Note (certification under circumstances described in
clauses (a) through (c) above being an "Allowed Certification")), the Issuer at
its election will either (x) redeem the Notes, in whole but not in part, upon
notice prior to the Redemption Date given in the manner provided below, at a
redemption price equal to 100% of the principal amount plus accrued interest to
the Redemption Date, or (y) if and so long as the conditions of the next
succeeding paragraph are satisfied, pay the Additional Amounts specified in such
paragraph. The Issuer shall make such determination as soon as practicable and
give, in the manner provided in paragraph 13 herein, prompt notice thereof (the
"Determination Notice"), stating the effective date of such certification,
documentation, information or reporting requirement, whether the Issuer elects
to redeem the Notes or to pay the Additional Amounts specified in
B-9
the next succeeding paragraph, and (if applicable) the last date by which the
redemption of the Notes must take place, as provided in the next succeeding
sentence. If the Notes are to be redeemed pursuant to this paragraph, such
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Issuer shall specify by notice
to the Fiscal Agent at least 65 days before the Redemption Date. Notice of such
redemption shall be given to the Holders of the Notes, not earlier than 60 nor
less than 30 days prior to the Redemption Date, as described in paragraph 5(d)
below. Notwith-standing the foregoing, the Issuer shall not so redeem the Notes
if the Issuer shall subsequently determine, based upon the written opinion of
independent counsel selected by the Issuer, which counsel is reasonably
acceptable to the Fiscal Agent, not less than 30 days prior to the Redemption
Date, that subsequent payments on the Bearer Notes and coupons would not be
subject to any such certification, documentation, information or other reporting
requirement, in which case the Issuer shall give prompt notice as provided in
paragraph 5(d) of such subsequent determination and any earlier redemption
notice shall be revoked and of no further effect. If the Issuer elects as
provided in clause (y) above to pay Additional Amounts, the Issuer may, as long
as the Issuer is obligated to pay such Additional Amounts, redeem all the Notes,
at any time, in whole but not in part, at a redemption price equal to 100% of
the principal amount plus accrued interest to the Redemption Date, together with
any Additional Amounts the Issuer is obligated to pay pursuant to the next
succeeding paragraph, upon notice as described in paragraph 5(d) below given not
less than 30 nor more than 60 days prior to the Redemption Date.
Notwithstanding the foregoing, if and so long as the certification,
documentation, information or other reporting requirement referred to in the
preceding paragraph would be fully satisfied by payment of a backup withholding
tax or similar charge, the Issuer may elect, by so stating in the Determination
Notice, to have the provisions of this paragraph apply. In such event, the
Issuer will pay as Additional Amounts such amounts as may be necessary so that
every net payment made, following the effective date of such requirements,
outside the United States by the Issuer or any of its Paying Agents in respect
of any Bearer Notes or any interest coupon of which the beneficial owner is a
United States Alien (but without any requirement that the nationality, residence
or identity of such beneficial owner be disclosed to the Issuer, any Paying
Agent or any governmental authority), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other than such a tax
or charge that is (1) the result of a failure to provide an Allowed
Certification or (2) imposed as a result of the fact that the Holder or
beneficial owner of such Note or any coupon is within the category of persons
described in clause (a) of paragraph 4 or (3) imposed as a result of
presentation of such Note or any coupon for payment more than 10 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, or (4) imposed as a result of a
person's past or present actual or constructive ownership (including by virtue
of the right to convert the Notes) of 10% or more of the total combined voting
power of all classes of stock of the Issuer entitled to vote) will not be less
than the amount provided for in such Note or interest coupon to be then due and
payable. If the Issuer elects to pay Additional Amounts pursuant to this
paragraph, the Issuer shall have the right to redeem the Notes at any time in
whole (but not in part) as provided in and subject to the provision of the last
two sentences of the immediately preceding paragraph. If the Issuer elects to
pay Additional Amounts pursuant to
B-10
this paragraph and the condition specified in the first sentence of this
paragraph should no longer be satisfied, then the Issuer shall redeem the Notes
in whole (but not in part), upon not less than 30 nor more than 60 days notice
prior to the Redemption Date, at a redemption price equal to 100% of the
principal amount thereof plus accrued interest to the Redemption Date, together
with Additional Amounts, subject to the provisions of the penultimate sentence
of the immediately preceding paragraph. Any redemption payments made by the
Issuer pursuant to the two immediately preceding sentences shall be subject to
the continuing obligation of the Issuer to pay Additional Amounts pursuant to
this paragraph.
(d) Notice of intention to redeem the Notes pursuant to
paragraphs 5(a) through 5(c), and any notice given pursuant to the penultimate
sentence of the first paragraph of Section 5(c), shall be given to Holders and
to the Fiscal Agent in accordance with paragraph 13 hereof and Section 7 of the
Fiscal Agency Agreement. Notice having been given, the Notes called for
redemption shall become due and payable on the Redemption Date and (upon
presentation and surrender thereof, together with all interest coupons, if any,
maturing subsequent to the Redemption Date) will be paid at the redemption price
plus accrued and unpaid interest to the Redemption Date plus, if applicable,
Additional Amounts.
(e) Bearer Notes must be presented for redemption together
with all unmatured interest coupons, if any, appertaining thereto, failing which
the amount of any missing unmatured interest coupons will be deducted from the
sum due for payment. Subject to paragraph 3(d) hereof, any amounts so deducted
will be paid in the manner mentioned in paragraph 3(a) hereof against surrender
of the related missing interest coupons. All unpaid interest installments
represented by interest coupons which shall have matured on or prior to the
Redemption Date specified in such notice shall continue to be payable to the
Holders of such interest coupons, and the amount payable to the Holders of
Bearer Notes presented for redemption shall not include such unpaid installments
of interest unless interest coupons representing such installments shall
accompany the Notes presented for redemption. Interest payable on Registered
Notes on any Interest Payment Date that is on or prior to a Redemption Date will
be paid to the Holder of record on the relevant Regular Record Date (or, if
applicable, Special Record Date). From and after the Redemption Date, if moneys
for the redemption of the Notes shall have been made available as provided
herein and in the Fiscal Agent Agreement for redemption on the Redemption Date,
the Notes called for redemption shall cease to bear interest, any interest
coupons appertaining thereto maturing subsequent to the Redemption Date shall be
void, and the only right of the Holders of such Notes and any interest coupons
appertaining thereto shall be to receive payment of the redemption price and all
unpaid interest accrued to the Redemption Date, together with any Additional
Amounts.
6. Conversion. Subject to the provisions of the Fiscal Agency
----------
Agreement, the Holder of any Note has the right at such Holder's option at any
time on or after the Exchange Date and prior to the close of business on
November 8, 2000 or, as to all or any portion of such Note called for
redemption, prior to the close of business on the Redemption Date, to convert
the principal of any such Note or, in the case of any Registered Note of a
denomination greater than U.S. $1,000, any portion of such principal which is
U.S. $1,000
B-11
or an integral multiple thereof (provided that, in the case of Restricted Notes,
the unconverted principal amount of such Note is at least U.S. $250,000), into
that number of fully paid and nonassessable shares of Common Stock as is
obtained by dividing the principal amount of such Note or portion thereof to be
converted by the conversion price of U.S. $37.806 per share of Common Stock, as
such conversion price may be adjusted from time to time as provided in the
Fiscal Agency Agreement, and rounding the result to the nearest 1/100th of a
share, upon surrender of the Note together with all interest coupons, if any,
maturing after the Conversion Date and with the conversion notice thereon (or a
substantially similar notice the form of which may be obtained from the
Registrar or any Conversion Agent) duly executed, to the Issuer at the office of
a Conversion Agent as provided in the next two succeeding sentences, duly
executed by the Holder thereof or his attorney duly authorized in writing.
Bearer Notes must be surrendered for conversion at the office of any Conversion
Agent outside the United States, provided that if conversion at all Conversion
Agents outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions, Bearer Notes
may be surrendered for conversion at the Corporate Trust Office of the Fiscal
Agent. Registered Notes may be surrendered at the Corporate Trust Office of the
Fiscal Agent or, subject to applicable laws and regulations, at the office of
any Conversion Agent outside the United States. No adjustment in respect of
interest or dividends will be made upon any conversion; provided, however, that,
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if any Registered Note shall be surrendered for conversion during the period
from the close of business on any Regular Record Date to the opening of business
on the following Interest Payment Date, such Registered Note (unless it or the
portion thereof being converted shall have been called for redemption on a date
in such period) must be accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date on the principal amount being
converted; provided, further, that no such payment need be made if there shall
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exist at the time of conversion a default in payment of interest on the Notes.
No fractional shares will be issued upon any conversion, but an adjustment in
cash will be made, as provided in the Fiscal Agency Agreement, in respect of any
fraction of a share which would otherwise be issuable upon the surrender of any
Note or Notes for conversion. Interest coupons with Interest Payment Dates on or
before the date of conversion (including coupons so maturing but in default)
will continue to be payable, as set forth in the Fiscal Agency Agreement,
notwithstanding the exercise of the right of conversion by the Holder of the
Note to which such coupons appertain. Interest payable on Registered Notes on
any Interest Payment Date that is on or prior to the Conversion Date will be
paid to the Holder of record on the relevant Regular Record Date (or, if
applicable, Special Record Date).
The right of the Holder hereof to convert this Note is subject to certain
limitations as set forth herein and in the legend on the face of this Note and,
in the case of Restricted Notes, as set forth in the Fiscal Agency Agreement,
and may be subject to the payment of certain taxes and duties as set forth in
Section 14(g) of the Fiscal Agency Agreement.
7. Events of Default. In case one or more of the following events
-----------------
(herein referred to as "Events of Default") (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to
B-12
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall have occurred and be continuing,
that is to say:
(a) default in the payment of any installment of interest
(including any Additional Amounts payable with respect thereto) on any of
the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
or redemption price of any of the Notes (including, in each case, any
Additional Amounts payable with respect thereto) as and when the same shall
become due and payable whether at maturity, upon redemption or otherwise;
or
(c) failure on the part of the Issuer duly to observe or perform
any other terms, covenants or agreements on the part of the Issuer
contained in the Notes or in the Fiscal Agency Agreement for a period of 60
days after the date on which written notice specifying such failure shall
have been given to the Issuer by the Fiscal Agent or by the Holders of 25%
or more in aggregate principal amount of the Notes then outstanding; or
(d) default under any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or evidenced,
any indebtedness of the Issuer for borrowed money in an aggregate principal
amount in excess of $20,000,000, whether such indebtedness existed on the
date of the Fiscal Agency Agreement or shall thereafter be created or
incurred, shall happen and shall result in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have been
rescinded or annulled within 30 days after there shall have been given to
the Issuer, by the Fiscal Agent or by the Holders of 25% or more in
aggregate principal amount of the Notes then outstanding, a written notice
specifying such default and requiring the Issuer to cause such acceleration
to be rescinded or annulled; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Issuer or for any
B-13
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance of any of the
foregoing;
then in each and every such case, the Fiscal Agent or the Holders of 25% or more
in aggregate principal of the Notes then outstanding may declare the principal
of and interest on all Notes to be due and payable immediately. The amount
payable in respect of this Note upon default shall be the principal amount
hereof together with accrued interest to the date such payment is made as
provided in paragraph 3 hereof. At any time after the declaration of
acceleration with respect to the Notes has been made, but before a judgment or
decree based on such acceleration has been obtained, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may rescind and
annul such declaration by written notice to the Issuer and the Fiscal Agent,
provided that (X) the Issuer has paid or deposited with the Fiscal Agent a sum
sufficient to pay (i) all overdue installments of interest on the Notes, (ii)
the principal of any Notes which has become due otherwise than by such
declaration of acceleration and interest thereon, (iii) to the extent that
payment of such interest is lawful, interest upon overdue installments of
interest due on the Notes, (iv) all sums paid or advanced by the Fiscal Agent
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Fiscal Agent, its agents and counsel; and (Y) all Events of Default with
respect to the Notes, other than the non-payment of Notes which has become due
solely by such declaration of acceleration, have been cured or waived.
8. Consolidation, Merger or Sale of Assets. (a) The Issuer may,
---------------------------------------
without the consent of the Holders of the Notes, consolidate with, or merge
into, or transfer, sell or convey all or substantially all of its assets to, a
corporation or trust or other entity (the "Successor Corporation") that is
organized under the laws of the United States or a state thereof or the District
of Columbia, provided that (i) such Successor Corporation shall expressly assume
the due and punctual payment of the principal of, and interest on, all the
Notes, and the due and punctual performance of all the covenants and obligations
of the Issuer under the Notes, interest coupons and Fiscal Agency Agreement, by
supplemental agreement satisfactory to the Fiscal Agent, (ii) the Fiscal Agent
shall have received the certificate and opinion of legal counsel required
pursuant to Section 12 of the Fiscal Agency Agreement, (iii) the Successor
Corporation shall not, immediately after such consolidation, merger, transfer,
sale or conveyance, be in default in the performance of any covenants or
obligations of the Issuer in the Notes, interest coupons or Fiscal Agency
Agreement, (iv) immediately after such consolidation, merger, transfer, sale or
conveyance, the Notes and interest coupons will not be subject to United States
federal estate tax as a result thereof, if held by a person who at the time of
death is not a citizen or resident of the United States of America, unless the
Successor Corporation shall have agreed, by supplemental agreement satisfactory
to the Fiscal Agent, to indemnify the persons liable therefor for the amount of
United States federal estate tax attributable to and payable in respect of any
Notes and interest coupons includable in the gross estate of the person who at
the time of death is not a citizen or resident of the United States of America,
and (v) such Successor Corporation waives, in the supplemental agreement
referred to in clause (i) above, any right to redeem the Notes under
circumstances in which the Successor Corporation would be entitled to redeem the
Notes but the Issuer would not have been so entitled to redeem if such
B-14
consolidation, merger, transfer, sale or conveyance had not occurred. The
amount of tax attributable to any Notes and interest coupons for purposes of
clause (iv) of this paragraph shall be calculated in accordance with the
provisions of the Code and any successor thereto.
(b) Upon any merger, consolidation, transfer, sale or
conveyance as provided in Section 8(a) hereof, the Successor Corporation shall
succeed to and be substituted for, and may exercise every right and power of and
be subject to all the obligations of, the Issuer under the Notes, interest
coupons and Fiscal Agency Agreement, with the same effect as if the Successor
Corporation had been named as the Issuer therein and herein and the Issuer shall
be released from its liability as obligor under the Notes, interest coupons and
Fiscal Agency Agreement.
9. Replacement, Exchange and Transfer of Notes. (a) In case any
-------------------------------------------
Note or interest coupon shall become mutilated, defaced or be apparently
destroyed, lost or stolen, the Issuer in its discretion may execute, and, upon
the request of the Issuer, the Fiscal Agent shall authenticate and deliver, a
new Note (with, in the case of a Bearer Note, appropriate interest coupons
attached) bearing a serial number not contemporaneously outstanding upon receipt
by the Fiscal Agent of, and in exchange and substitution for, the mutilated or
defaced Note or the Note to which the mutilated or defaced interest coupon was
attached, or in lieu of and in substitution for the apparently destroyed, lost
or stolen Note or the Note to which the apparently destroyed, lost or stolen
interest coupon was attached. In every case of destruction, loss or theft, the
applicant for a substitute Note shall furnish to the Issuer and to the Fiscal
Agent such security or indemnity as may be required by them to indemnify and
defend and to save each of them and any agent of the Issuer or the Fiscal Agent
harmless, and evidence to their satisfaction of the apparent destruction, loss
or theft of such Note or interest coupon and of the ownership thereof. Upon the
issuance of any substitute Note, the Issuer 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
Fiscal Agent) connected therewith.
(b) Upon the terms and subject to the conditions set forth
in the Fiscal Agency Agreement, and subject to paragraph 9(e) hereof, a Bearer
Note or Notes may be exchanged for a Registered Note or Notes of equal aggregate
principal amount in such authorized denominations as may be requested by the
Holder by surrender of such Bearer Note or Notes and all unmatured interest
coupons (if any) appertaining thereto to the office of the Registrar, or to the
office of any other Transfer Agent that may be appointed by the Issuer, together
with a written request for the exchange. Registered Notes, including Registered
Notes received in exchange for Bearer Notes, may not be exchanged for Bearer
Notes. Upon the terms and subject to the conditions set forth in the Fiscal
Agency Agreement, and subject to paragraph 9(e) hereof, a Registered Note or
Registered Notes may be exchanged for a Registered Note or Registered Notes of
equal aggregate principal amount, but in such different authorized denominations
as may be requested by the Holder by surrender of such Note or Notes to the
office of the Registrar, or to the office of any other Transfer Agent that may
be appointed by the Issuer, together with a written request for the exchange.
B-15
(c) Upon the terms and subject to the conditions set forth
in the Fiscal Agency Agreement, and subject to paragraph (e) hereof, a
Registered Note may be transferred in whole or in part (in the amount of U.S.
$1,000 (or U.S. $250,000 in the case of Restricted Notes) or an integral
multiple of U.S. $1,000 in excess thereof) by the Holder or Holders surrendering
the Registered Note for registration of transfer at the office of the Registrar
or at the office of any Transfer Agent, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Registrar or any such Transfer Agent, as the case may be, duly executed by, the
Holder or Holders thereof or his or their attorney or attorneys duly authorized
in writing; provided, however, that registration of transfer of Restricted Notes
-------- -------
shall be subject to the restrictions on transfers set forth in Section 5 of the
Fiscal Agency Agreement and in the legend on the face of such Notes).
(d) No service charge shall be made for any exchange or
registration of transfer of Notes (except for the expenses of delivery by other
than regular mail), but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto other than in the case of exchanges made upon redemption or conversion
of a Note in part not involving any transfer.
(e) Neither the Registrar nor any Transfer Agent shall be
required to register the transfer of or exchange any Notes for a period of 15
days preceding any date for the selection of Notes to be redeemed, except in
connection with a conversion of Notes as contemplated by paragraph 6, or to
register the transfer of or exchange any Note called or being called for
redemption except, in the case of a Note to be redeemed or converted in part,
the portion thereof not to be so redeemed or converted; provided, however, in
-------- -------
the event that the Notes have been called for redemption, a Bearer Note may be
exchanged for a Registered Note which is simultaneously surrendered to the
Registrar or any Transfer Agent making such exchange with written instruction
for payment consistent with the provisions of the Notes, interest coupons and
Fiscal Agency Agreement.
10. Modifications and Amendment; Noteholders' Meetings. (a) The
--------------------------------------------------
Fiscal Agency Agreement and the Notes and interest coupons may be modified or
amended by the parties to the Fiscal Agency Agreement, without the consent of
the Holder of any Note or interest coupon, for the purpose of (i) adding to the
covenants of the Issuer for the benefit of the Holders of Notes or interest
coupons or surrendering any right or power conferred upon the Issuer; (ii)
providing for the payment of principal and interest in respect of Bearer Notes
in the United States under the circumstances described on the face hereof or
providing for the conversion of Bearer Notes in the United States under the
circumstances described in paragraph 6 hereof; (iii) effecting any succession or
assumption as described under paragraph 8(a) hereof; (iv) providing for the
conversion rights of the Holders of the Notes pursuant to Section 14(f) of the
Fiscal Agency Agreement; or (v) curing any ambiguity or correcting or
supplementing any defective provision contained in the Fiscal Agency Agreement
or the Notes or interest coupons or making any other amendments or modifications
which the Issuer and the Fiscal Agent may deem necessary or desirable and which,
in any such case, will not adversely affect the interests of the Holders of the
Notes or interest coupons in any material respect, to all of which each Holder
of any Note or interest coupon shall, by acceptance thereof, be deemed to
consent.
B-16
(b) Modifications and amendments to the Fiscal Agency
Agreement and to the Notes and interest coupons may be made, and future
compliance therewith or past defaults thereunder by the Issuer may be waived,
with the written consent of the Holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding, or of such percentage
stated in paragraph 10(c) hereof as may act at a meeting of Holders of the Notes
held in accordance with the provisions of the Fiscal Agency Agreement; provided,
--------
however, that no such modification, amendment or waiver may, without the written
- -------
consent or the affirmative vote of the Holder of each Note affected thereby, (i)
change the stated maturity of the principal of, or the due date for any
installment of interest on, any such Note; (ii) reduce the principal amount of,
or interest on, any such Note or reduce the amount payable on any such Note in
the event of redemption or default; (iii) change the obligation of the Issuer to
pay Additional Amounts in respect of such Note; (iv) change the currency of
payment of principal of or interest on any such Note; (v) impair the right to
institute suit for the enforcement of any such payment on or with respect to any
such Note; (vi) modify the obligations of the Issuer to maintain the Registrar,
a Paying Agent, a Transfer Agent and a Conversion Agent in The City of New York
and Europe, and a Corporate Trust Office of the Fiscal Agent in The City of New
York, in accordance with paragraph 3(c) hereof; (vii) except as otherwise
permitted or contemplated the provisions of the Notes concerning the merger,
consolidation or sale of all or substantially all of the assets of the Issuer,
adversely affect the right to convert the Notes into Common Stock on the terms
set forth herein and in the Fiscal Agency Agreement; (viii) modify the
subordination provisions of the Notes in a manner adverse to the Holders of the
Notes; or (ix) reduce the above-stated percentage of aggregate principal amount
of the Notes outstanding necessary to modify or amend the Fiscal Agency
Agreement or the Notes or interest coupons or to waive any future compliance or
past default, or reduce the quorum requirements or the percentage of votes
required for the adoption of any action at a Holder's meeting, or reduce the
percentage in aggregate principal amount of the Notes necessary to rescind and
annul a declaration of acceleration pursuant to paragraph 7. Any modifications,
amendments or waivers to the Fiscal Agency Agreement or to the Notes or interest
coupons will be conclusive and binding on all Holders of the Notes and on all
Holders of interest coupons, whether or not they have given such consent or were
present at such meeting, and on all future Holders of Notes and interest
coupons, whether or not notation of such modifications, amendments or waivers is
made upon the Notes or interest coupons. Any instrument given by or on behalf of
any Holder of a Note in connection with any consent to any such modification,
amendment or waiver will be irrevocable once given and will be conclusive and
binding on all subsequent Holders of such Note and any interest coupons
appertaining thereto.
(c) At a meeting of the Holders of the Notes for the
purpose of approving a modification or amendment to, or obtaining a waiver of,
any covenant or condition set forth in the Fiscal Agency Agreement or the Notes
or coupons, persons entitled to vote a majority in aggregate principal amount of
the Notes at the time outstanding shall constitute a quorum. In the absence of a
quorum at any such meeting, the meeting may be adjourned for a period of not
less than 10 days; 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; at the reconvening of any meeting further adjourned for lack of a quorum,
the persons entitled to vote 25% in aggregate principal amount of the Notes at
the time
B-17
outstanding shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. At a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid, any resolution to modify
or amend, or to waive compliance with, any of the covenants or conditions
referred to above shall be effectively passed and decided if passed and decided
by the person entitled to vote a majority in aggregate principal amount or, if
the quorum for such meeting represents less than a majority in aggregate
principal amount of the Notes at the time outstanding, 66-2/3% in aggregate
principal amount of the Notes represented and voting at the meeting.
11. Non-Business Days; Calculation of Interest. (a) In any case
------------------------------------------
where the date of maturity of the principal of or interest on the Notes or the
Redemption Date of any Notes shall not be, in the place where a Note or interest
coupon is presented for payment, a Business Day, then payment of principal or
interest need not be made on such date at such place but may be made on the next
succeeding Business Day following such date at such place of payment, with the
same force and effect as if made on the date of maturity or the Redemption Date,
and no interest shall accrue for the period from and after the date of maturity
or the Redemption Date, as the case may be. Except as otherwise provided in the
Fiscal Agency Agreement, the term "Business Day", with respect to any place of
payment, place of conversion or any other place, as the case may be, shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in The City of New York or that place of payment, place of
conversion or other place, as the case may be, are authorized or obligated by
law or executive order to close.
(b) Interest in respect of any period of less than one year
shall be calculated on the basis of a 360-day year of twelve thirty-day months
and, in the case of an incomplete month, the number of days elapsed in such
incomplete month.
12. Fiscal Agent. Anything herein or in the Fiscal Agency Agreement
------------
to the contrary notwithstanding, in acting under the Fiscal Agency Agreement and
in connection with the Notes and interest coupons, the Fiscal Agent and each
other agent of the Issuer under the Fiscal Agency Agreement is acting solely as
agent of the Issuer and does not assume any obligation towards or relationship
of agency or trust for or with the owner or Holder of this Note or any interest
coupon appertaining hereto or the holder of any Senior Indebtedness, except that
all funds held by the Fiscal Agent or any other Paying Agent of the Issuer for
payment of principal of or interest on this Note shall, subject to paragraph
3(d), be held in trust by it and applied, as set forth herein and in the Fiscal
Agency Agreement, but need not be segregated from other funds held by it, except
as required by law. Without limitation to the foregoing, (i) any requirement
that any agreement, opinion of counsel or other document be satisfactory to the
Fiscal Agent shall not create any relationship of trust for or with any of the
owners or Holders of the Notes or coupons, and (ii) any provision to the effect
that the Fiscal Agent may give notice of default or acceleration of the Notes
shall neither create any relationship or trust for or with any of the owners or
Holders of Notes or coupons or require that the Fiscal Agent give any such
notice except at the direction of the Holders of the requisite percentage in
principal amount of the Notes.
B-18
13. Notices. All notices to the Holders of Bearer Notes will be
-------
published in an Authorized Newspaper in New York City and in London and, so long
as the Notes are listed by the Issuer on the Luxembourg Stock Exchange and such
Exchange shall so require, in Luxembourg or, if publication in either London or
Luxembourg is not practicable, elsewhere in Europe. Notices will be mailed to
Holders of Registered Notes at their addresses as they appear in the Note
Register. Notices shall be deemed to have been given on the date of publication
or mailing as aforesaid or, if published on different dates, on the date of the
first such publication.
14. Governing Law. This Note and the interest coupons appertaining
-------------
hereto, if any, shall be construed in accordance with and governed by the laws
of the State of California.
15. Warranty of the Issuer. Subject to due authentication of this
----------------------
Note by the Fiscal Agent, the Issuer hereby certifies and warrants that all
acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this Note and any appurtenant
interest coupons, and to constitute the same legal, valid and binding
obligations of the Issuer enforceable in accordance with their terms, have been
done and performed and have happened in due and strict compliance with all
applicable laws.
16. Capitalized Terms. Capitalized terms used in these Terms and
-----------------
Conditions which are defined on the face of this Note shall have the respective
meanings ascribed thereto on the face of this Note. Capitalized terms used in
these Terms and Conditions or on the face of this Note and not defined herein or
therein shall have the respective meanings ascribed thereto in the Fiscal Agency
Agreement.
17. Required Certification. Anything herein to the contrary
----------------------
notwithstanding, payment of principal upon redemption of this Note, delivery of
Common Stock upon conversion of this Note and payment of cash, if any, in lieu
of fractional shares upon conversion of this Note will be made, in each case,
only upon delivery to a Paying Agent or Conversion Agent, as the case may be, by
the Holder of this Note of a written certification in the form required by
Section 7(e) or 14(1) of the Fiscal Agency Agreement, as the case may be;
provided that no such certification shall be required if delivery thereof shall
have been waived by the Issuer or if the Issuer shall have failed to comply with
its obligations under Section 7(e) or 14(1), as the case may be, of the Fiscal
Agency Agreement.
18. Descriptive Headings. The descriptive headings appearing in
--------------------
these Terms and Conditions are for convenience of reference only and shall not
alter, limit or define the provisions hereof.
B-19
REGISTRAR
Chemical Bank
450 West 33rd Street
New York, New York 10001
PAYING, TRANSFER AND CONVERSION AGENTS
Chemical Bank Banque Internationale Chemical Bank
450 West 33rd Street a Luxembourg S.A. 125 London Wall
New York, New York 10001 2 Boulevard Royale London EC2Y 5AJ
L-2953 England
Luxembourg
B-20
- --------------------------------------------------------------------------------
Conversion Notice
TO HEALTH CARE PROPERTY INVESTORS, INC.
The undersigned owner of this Note hereby irrevocably
exercises the option to convert this note (or, if this Note is a Registered
Note, a portion thereof which is U.S. $1,000 or a multiple thereof (below
designated)) into shares of Common Stock of Health Care Property Investors, Inc.
(the "Issuer") in accordance with the terms of this Note and the Fiscal Agency
Agreement referred to therein, and directs that the shares issuable and
deliverable upon conversion, together with any payment for fractional shares, be
issued and delivered to the name indicated below (or, if this is a Registered
Note and no name is indicated below, to the registered Holder hereof). If any
shares issuable upon conversion are not registered in the name of the
undersigned (if this Note is a Bearer Note) or in the name of the registered
Holder of this Note (if this Note is a Registered Note), the undersigned must
deliver a certification to the effect provided in clause (A) of the succeeding
paragraph executed by the person in whose name such shares will be registered.
The undersigned hereby (A) certifies that the conversion of
this Note will not cause any person to beneficially own, directly or indirectly,
more than 9.9% of the outstanding Common Stock of the Issuer (including shares
of Common Stock issuable upon conversion of Notes held by it but excluding
shares of Common Stock issuable upon conversion of Notes held by other
investors); and (B) further certifies that one or more of the following is true
(check applicable box(es)): (i) [_] the beneficial owner of this Note did not
acquire Notes, stock or other securities (other than Common Stock) of the Issuer
(collectively, the "Applicable Securities") at any time when the market value of
the Applicable Securities already beneficially owned by such owner, together
with the cost of any newly acquired Applicable Securities, exceeded the market
value of 5% of the outstanding Common Stock of the Issuer (or the class of
interest required by any final or amended form of temporary U.S. Treasury
Regulation Section 1.897-9T(b), if different); (ii) [_] the beneficial owner of
this Note has not at any time beneficially owned more than 5% of the total
market value of the then outstanding Notes; (iii) [_] the beneficial owner of
this Note is not a United States Alien; or (iv) [_] none of the above
certifications is true. For purposes of the certification in (A) above,
beneficial ownership shall include actual ownership as well as constructive
ownership as set forth in both Section 544 of the United States Internal Revenue
(the "Code") (as modified by Code Section 856(b)(1)) and Code Section 318(a) (as
modified by Code Section 856(d)(5)). For purposes of the certifications in (B)
above, beneficial ownership shall include actual ownership as well as
constructive ownership as set forth in Code Section 318(a) (as modified by Code
Section 897(c)(6)(C)).
If this Note is a Restricted Note, no shares issuable upon
conversion hereof may be registered in a name other than that of the registered
Holder hereof unless such Holder shall have completed the transfer form required
by, and complied with the other transfer requirements of, the Restricted Notes
and the Fiscal Agency Agreement.
Dated: ___________________________________________
Signature(s)
Notice: In the case of a Registered Note,
Fill in for registration of the signature(s) on this certification must
shares: correspond with the name as it appears on
the face of the Note in every particular,
without alteration or enlargement or any
change whatsoever.
_________________________________
_________________________________ Principal amount of Registered Note to be
_________________________________ converted (if less than all). Each Bearer
(Please print name and Note must be converted in whole. If a
address, including zip Restricted Note is converted in part, the
code) uncovered portion thereof must be at least
$250,000:
_________________________________
Social Security or other $__________________________________________
Taxpayer Identification
Number (If a United States
Person)
- --------------------------------------------------------------------------------
B-21
[Transfer Certificate for Restricted Notes]
In connection with any transfer of all or any portion of this Note occurring,
or if any shares of Common Stock issuable upon conversion hereof are to be
registered in a name other than that of the registered Holder hereof, in each
case prior to the Resale Restriction Termination Date, the undersigned confirms
that such Note or shares, as the case may be, are being transferred:
[_] to a person the undersigned [_] to an institutional investor
reasonably believes is a which is an "accredited investor"
"qualified institutional buyer" within the meaning of Rule
as defined in Rule 144A under the 501(a)(1), (2) (3) or (7) under
Securities Act of 1933, as the 1933 Act, that is acquiring
amended (the "1933 Act")(a for investment purposes and not
"QIB"), that is purchasing for for distribution in violation of
its own account or for the the 1933 Act and that has
account of a QIB to whom notice furnished to the Registrar a
is given that the transfer is signed letter containing certain
being made in reliance on Rule representations and agreements
144A; or (the form of which letter can be
obtained from the Registrar); or
[_] pursuant to an offer and sale to [_] to the Issuer
a non-U.S. Person made outside
the United States within the
meaning of, and in compliance
with, Regulation S under the 1933
Act; or
[_] pursuant to a registration
statement which has been declared
effective under the 1933 Act; or
Unless one of the boxes above is checked, the Registrar and any Transfer
Agent will refuse to register any of the Notes evidenced by this certificate, or
any shares issuable upon conversion thereof, in the name of any person other
than the registered Holder thereof; provided, however, that the Issuer may, in
its sole discretion, permit the Registrar and any Transfer Agent to register the
transfer of such Notes or shares if it has received such legal opinions as the
Issuer, the Registrar or any Transfer Agent has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from the registration
requirements of the 1933 Act.
Notice: The signature(s) to this ______________________________________
certification must correspond with Signature(s)
the name as it appears on the face of
the within Note in every particular,
without alteration or enlargement or
any change whatsoever.
Dated:
- --------------------------------------------------------------------------------
B-22
EXHIBIT C
[FORM OF INTEREST COUPON]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
No. __________________ U.S. $150.00
Due [November 8] [May 8], _____.*
On the date shown hereon (unless prior to such date the Note hereinafter
referred to shall have been duly called for redemption and payment of the
redemption price shall have been made or duly provided for), HEALTH CARE
PROPERTY INVESTORS, INC. shall pay to the bearer (subject to the Terms and
Conditions of the Note to which this coupon appertains, which shall be binding
on the Holder of this coupon whether or not attached to such Note), upon
surrender hereof, the amount shown hereon (together with any Additional Amounts
which may be payable under the Terms and Conditions of such Note), being one
half-year's interest then payable on its 6% Convertible Subordinated Notes Due
2000, the number of which appears on this coupon. Payment of this coupon will
be made in U.S. dollars at the office of any Paying Agent outside the United
States maintained at the time by the Issuer for such purpose (payment to be
made, at the option of the Holder hereof and subject to any applicable laws and
regulations, by check drawn on a bank in New York City or (upon receipt by the
Fiscal Agent or a Paying Agent of appropriate transfer instructions) by transfer
to a dollar account maintained by the Holder with a bank located outside the
United States). Except as otherwise provided in the Terms and Conditions of the
Note, no payment shall be mailed to an address or transferred to an account in
the United States.
HEALTH CARE PROPERTY
INVESTORS, INC.
By_____________________________
Title:
By_____________________________
Title:
____________________
* Delete inappropriate reference.
C-1
LIST OF PAYING AGENTS
Chemical Bank Banque Internationale Chemical Bank
450 West 33rd Street a Luxembourg S.A. 125 London Wall
New York, New York 10001 2 Boulevard Royale London EC2Y 5AJ
L-2953 England
Luxembourg
C-2
EXHIBIT D
[FORM OF TEMPORARY GLOBAL NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "1933 ACT") AND MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN
THE UNITED STATES OF AMERICA (INCLUDING THE STATES AND THE DISTRICT OF
COLUMBIA), ITS TERRITORIES, ITS POSSESSIONS AND OTHER AREAS SUBJECT TO ITS
JURISDICTION (THE "UNITED STATES") OR TO ANY CITIZEN OR RESIDENT OF THE UNITED
STATES, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR
UNDER THE LAWS OF THE UNITED STATES, OR ANY ESTATE OR TRUST THE INCOME OF WHICH
IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE
("UNITED STATES PERSONS").
THIS NOTE IS A TEMPORARY GLOBAL NOTE, WITHOUT COUPONS, BXCHANGEABLE FOR
DEFINITIVE BEARER NOTES WITH INTEREST COUPONS OR DEFINITIVE REGISTERED NOTES
WITHOUT INTEREST COUPONS. THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE FISCAL AGENCY AGREEMENT (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON OR TO CONVERT THIS NOTE INTO
COMMON STOCK.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
HEALTH CARE PROPERTY INVESTORS, INC.
TEMPORARY GLOBAL NOTE
representing
U.S. $71,400,000
6% Convertible Subordinated Notes due 2000
Subject to the provisions hereof, HEALTH CARE PROPERTY INVESTORS, INC., a
corporation duly organized and validly existing under the laws of the State of
Maryland law (the "Issuer"), for value received, hereby promises to pay to the
bearer upon surrender
D-1
hereof on November 8, 2000, the principal sum of SEVENTY-ONE MILLION FOUR
HUNDRED THOUSAND UNITED STATES DOLLARS (U.S. $71,400,000), and to pay interest
on said principal sum in dollars semi-annually in arrears on May 8 and November
8 of each year from the date hereof, commencing May 8, 1994, at the rate of 6%
per annum, calculated based upon a 360-day year of twelve thirty-day months,
until payment of said principal sum has been made or dulY provided, but only
after exchange of interests in this Temporary Global Note for definitive Notes
as provided herein. Such payments shall be made in U.S. dollars.
This Temporary Global Note is issued in respect of an issue of 6% Convertible
Subordinated Notes Due 2000 of the Issuer, limited to the aggregate principal
amount of U.S. $100,000,000 issued pursuant to a Fiscal Agency Agreement (the
"Fiscal Agency Agreement") dated as of November 8, 1993 between the Issuer and
Chemical Bank, as fiscal agent (the "Fiscal Agent"), and is governed by the
Terms and Conditions of the definitive Notes, which Terms and Conditions are
incorporated herein by reference mutatis mutandis and, except as otherwise
------- --------
provided herein, shall be binding on the Issuer and the Holder hereof as if
fully set forth herein. Unless the context otherwise requires, the terms used
herein shall have the meanings specified in the Fiscal Agency Agreement and such
Terms and Conditions.
Until this Temporary Global Note is exchanged for definitive Notes, the
Holder hereof shall not be entitled to receive payments of interest hereon or to
convert his interest herein into the Common Stock of the Issuer or any other
security, cash or other property; until so exchanged in full, this Temporary
Global Note shall in all other respects be entitled to the same benefits as
definitive Notes under such Terms and Conditions and the Fiscal Agency
Agreement.
This Temporary Global Note is exchangeable in whole or from time to time in
part for definitive Bearer Notes with appertaining interest coupons attached or
Registered Notes without interest coupons upon request of Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System, or
Cedel S.A. to the Fiscal Agent, only (i) on or after the Exchange Date and (ii)
upon presentation of certificates in the form required by Section 4 of the
Fiscal Agency Agreement. Upon exchange of any portion of this Temporary Global
Note for a definitive Note or Notes, the Fiscal Agent shall cause Schedule A of
this Temporary Global Note to be endorsed to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of such
definitive Note or Notes, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so exchanged and noted.
This Temporary Global Note shall not become valid or obligatory until the
certificate of authentication hereon shall have been duly manually signed by the
Fiscal Agent in accordance with the Fiscal Agency Agreement.
This Temporary Global Note shall be governed by and construed in accordance
with the laws of the State of California.
D-2
All references to "$," "Dollars," "dollars" or "U.S. $" are to 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 therein.
IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC. has caused this
instrument to be duly executed.
Dated: November 8, 1993
HEALTH CARE PROPERTY
INVESTORS, INC.
By_____________________________
Title:
By_____________________________
Title:
D-3
CERTIFICATE OF AUTHENTICATION
This is the Temporary Global Note described in the within mentioned Fiscal
Agency Agreement.
CHEMICAL BANK,
as Fiscal Agent
By____________________________________________________________________
Title:
D-4
Schedule A
----------
Exchange of portions of this Temporary Global Note
--------------------------------------------------
for definitive Notes
--------------------
Principal amount of Definitive Remaining Principal
Notes Issued in Exchange for a Amount of this
portion of this Temporary Global Temporary Global
Date Note Note Notation Made By
---- -------------------------------- ------------------- ----------------
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
_____ ________________________ _________________ _______________
D-5
EXHIBIT E
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE FISCAL AGENT BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE NOTES]
HEALTH CARE PROPERTY INVESTORS, INC.
6% Convertible Subordinated Notes due 2000
We refer to that portion of the Temporary Global Note in respect of the
above-captioned issue which is herewith submitted to be exchanged for definitive
Notes (the "Submitted Portion") as provided in the Fiscal Agency Agreement dated
as of November 8, 1993 (the "Fiscal Agency Agreement") in respect of such issue.
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from each member
organization appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form set out in the Fiscal Agency Agreement relating to the above-
captioned Notes, as of the date hereof, (X) U.S. $___________ principal amount
of the above-captioned Notes is beneficially owned by (i) United States Aliens
(as defined below), (ii) persons described in Section 1.163-5(c)(2)(i)(D)(6) of
the United States Treasury Regulations (the "Treasury Regulations") or (iii)
financial institutions that have purchased such Notes for purposes of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the Treasury Regulations), which financial institutions (whether or not also
described in clause (i) or (ii) above) have certified in addition that they have
not acquired the Notes for purposes of resale directly or indirectly to a United
States Person (as defined below) or to a person within the United States (as
described in Section 1.163-5 of the Treasury Regulations) and (Y) that as a
result of such exchange of the Submitted Portion, the beneficial owner of any
such definitive Notes will not beneficially own, directly or indirectly, more
than 9.9% of the Issuer's outstanding Common Stock; provided, however, that our
certification made in clause (Y) is based solely upon the certifications we have
received from our Member Organizations and we have made no independent
investigation of, nor do we assume any responsibility for the truth and accuracy
of, such information. For purposes of clause (Y) above, beneficial ownership
shall include actual ownership as well as constructive ownership as set forth in
both United States Internal Revenue Code of 1986, as amended (the "Code"),
Section 544 (as modified by Code Section 856(h)(1)) and Code Section 318(a) (as
modified by Code Section 856(d)(5)).
As used herein, "United States" means 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 Alien" means any person
that, for United States federal income tax purposes, is neither treated as a
citizen or resident of the United States, nor a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, nor an estate or trust the income of which
is subject to United States federal income tax regardless of source; and "United
States Person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States or of any political
E-1
subdivision thereof, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
This is also to certify with respect to such principal amount of Notes set
forth above that we have received in writing, by tested telex or by electronic
transmission, from our Member Organizations entitled to a portion of such
principal amount, certifications with respect to such portion, substantially to
the effect set forth in the Fiscal Agency Agreement.
We further certify (i) that we are not making available herewith for exchange
any portion of the Temporary Global Note excepted in such certifications and
(ii) that 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 are no longer true and cannot be relied Upon as the date hereof.
We understand that this certification is required in connection with certain
tax laws and certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification or a copy hereof to any interested
party in such proceedings. We agree to retain each statement provided by a
Member Organization for a period of four calendar years following the year in
which the statement is received or such longer period as may be required by law
to satisfy any exemption from United States federal income tax withholding
obligations of the Issuer or Fiscal Agent.
Dated: ___, 19____ /3/ Morgan Guaranty Trust Company
of New York, Brussels office,
as operator of the
Eurolear System]/4/
[Cedel S.A.]/4/
By ______________________________________________________________
_____________________________
3. To be dated no earlier than the Exchange Date.
4. Delete the inappropriate reference.
E-2
EXHIBIT F-1
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR
OR CEDEL BY A BENEFICIAL OWNER OF NOTES]
HEALTH CARE PROPERTY INVESTORS, INC.
6% Convertible Subordinated Notes due 2000
This is to certify that as of the date hereof and except as provided in the
third paragraph hereof, that (X) the above-captioned Notes held by you for our
account are beneficially owned by (i) a United States Alien (as defined below),
(ii) a person described in Section 1.163-5(c)(2)(i)(D)(6) of the United States
Treasury Regulations (the "Treasury Regulations"), or (iii) a financial
institution that has purchased such Notes for purposes of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury
Regulations), which financial institution (whether or not also described in
clause (i) or (ii) above) certifies in addition that it has not acquired the
Notes for purposes of resale directly or indirectly to a United States Person
(as defined below) or to a person within the United States (as described in
Section 1.163-5 of the Treasury Regulations) and (Y) no such beneficial owner of
an interest in the Notes held by you for our account owns beneficially, directly
or indirectly, more than 9.9% of the outstanding shares of common stock (the
"Common Stock") of Health Care Property Investors, Inc. (the "Issuer"). For
purposes of clause (Y) of the immediately preceding sentence, the calculation of
beneficial ownership of Common Stock of the Issuer with respect to any
particular beneficial owner of Notes was determined by including shares of
Common Stock issuable upon conversion of Notes held by such beneficial owner,
but excluding shares of Common Stock issuable upon conversion of the Notes held
by other owners of Notes. Also for purposes of such clause (Y), beneficial
ownership shall include actual ownership as well as constructive ownership as
set forth in both United States Internal Revenue Code of 1986, as amended (the
"Code"), Section 544 (as modified by Code Section 856(h)(1)) and Code Section
318(a) (as modified by Code Section 856(d)(5)).
As used herein, "United States" means 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 Alien" means any person
that, for United States federal income tax purposes, is neither treated as a
citizen or resident of the United States, nor a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, nor an estate or trust the income of which
is subject to United States federal income tax regardless of source; and "United
States Person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States or of any political subdivision thereof, or any estate
or trust the income of which is subject to United States federal income taxation
regardless of its source.
We undertake to advise you by tested telex or electronic transmission if the
above statement as to beneficial ownership is not correct with respect to such
of said Notes as then appear in your books as being held for our account.
F-1-1
This certificate excepts and does not relate to U.S. $____________ principal
amount of Notes held by you for our account, as to which we are not yet able to
certify beneficial ownership. We understand that delivery of definitive Notes
in such principal amount cannot be made until we are able so to certify.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. 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 hereof to any interested party in such proceedings.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and "United States Alien" means any
person that, for United States federal income tax purposes, is neither treated
as a citizen or resident of the United States, nor a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, nor an estate or trust the income of which
is subject to United States federal income tax regardless of source.
Dated: * By_____________________________________________________________
Authorized Signature
_____________________
* This certificate must be dated not earlier than 15 days prior to the Exchange
Date.
F-1-2
EXHIBIT G
[FORM OF CONVERSION NOTICE]
- --------------------------------------------------------------------------------
TO HEALTH CARE PROPERTY INVESTORS, INC.
Re: 6% Convertible Subordinated Notes due 2000 ("Notes")
The undersigned owner of the accompanying Note hereby irrevocably exercises
the option to convert the Note (or, if the Note is a Registered Note, a portion
thereof which is U.S. $1,000 or a multiple thereof (below, designated) into
shares of Common Stock of Health Care Property Investors, Inc. (the "Issuer") in
accordance with the terms of the Note and the Fiscal Agency Agreement referred
to therein, and directs that the shares issuable and deliverable upon
convenience, together with any payments for fractional shares, be issued and
delivered to the name indicated below (or, if this is a Registered Note and no
name is indicated below, to the registered Holder hereof. If any shares issuable
upon convenience are not registered in the name of the undersigned (if the Note
is a Bearer Note) or in the name of the registered Holder of this Note (if the
Note is a Registered Note), the undersigned must deliver a certification to the
effect provided in clause (A) of the succeeding paragraph executed by the person
in whose name such shares will be registered.
The undersigned hereby (A) certifies that the conversion of the Note will
not cause any person to beneficially own, directly or indirectly, more than 9.9%
of the outstanding Common Stock of the Issuer (including shares of Common Stock
issuable upon conversion of Notes held by it but excluding shares of Common
Stock issuable upon conversion of Notes held by other investors); and (B)
further certifies that one or more of the following is true (check applicable
box(es)): (i) [_] the beneficial owner of this Note did not acquire Notes, stock
or other securities (other than Common Stock) of the Issuer (collectively, the
"Applicable Securities") at any time when the market value of the Applicable
Securities already beneficially owned by such owner, together with the cost of
any newly acquired Applicable Securities, exceeded the market value of 5% of the
outstanding Common Stock of the Issuer (or the class of interest required by any
final or amended form of temporary U.S. Treasury Regulation Section 1.897-9T(b),
if different); (ii) [_] the beneficial owner of this Note has not at any time
beneficially owned more than 5% of the total market value of the then
outstanding Notes; (iii) [_] the beneficial owner of this Note is not a United
States Alien; or (iv) [_] none of the above certifications is true. For purposes
of the certification in (A) above, beneficial ownership shall include actual
ownership as well as constructive ownership as set forth in both Section 544 of
the United States Internal Revenue Code (the "Code") (as modified by Code
Section 856(h)(1) and Code Section 318(a) (as modified by Code Section
856(d)(5)). For purposes of the certifications in (B) above, beneficial
ownership shall include actual ownership as well as constructive ownership as
set forth in Code Section 318(a) (as modified by Code Section 897(c)(6)(C).
If the Note is a Restricted Note, no shares issuable upon conversion
thereof may be registered in a name other than that of the registered Holder
thereof unless such Holder shall have completed the transfer form required by,
and complied with the other transfer requirements of, the Restricted Notes and
the Fiscal Agency Agreement.
Dated:
--------------------------------------
Fill in for registration of shares: Signature(s)
Notice: In the case of a Registered
Note, the signature(s) on this
certification must correspond with the
name as it appears on the face of the
Note in every particular, without
alteration or enlargement or any change
whatsoever.
__________
Principal amounts of Registered Note to
__________ be converted (if less than all). Each
Bearer Note must be converted in whole.
__________ If a Registered Note is converted in
(Please print your name and address, part, the unconverted portion thereof
including zip code) must be at least $250,000.
_____________ $_______________________________________
Social Security or other Taxpayer
Identification Number (if a United
States person)
- --------------------------------------------------------------------------------
G-1
EXHIBIT H
[FORM OF FACE OF DTC NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE EXCHANGE DATE (AS
DEFINED IN THE FISCAL AGENCY AGREEMENT REFERRED TO HEREIN) AND THE LAST DATE ON
WHICH THE ISSUER OR ANY "AFFILIATE" (AS DEFINED IN RULE 144 PROMULGATED UNDER
THE 1933 ACT) OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
THIS NOTE) ONLY TO A PERSON THAT IS NOT AN "AFFILIATE" OR ACTING ON BEHALF OF AN
"AFFILIATE" OF THE ISSUER AND ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (C)
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE 1933 ACT, (E) TO AN INSTITUTIONAL INVESTOR
WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER THE 1933 ACT THAT IS ACQUIRING THE
NOTE FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE 1933
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT (SUBJECT IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF A TRANSFEREE'S PROPERTY BE AT ALL
TIMES WITHIN ITS CONTROL), AND SUBJECT TO THE ISSUER'S, THE REGISTRAR'S AND ANY
TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, EXCEPT AS OTHERWISE PROVIDED IN THE
FISCAL AGENCY AGREEMENT REFERRED TO HEREIN, A CERTIFICATE IN THE FORM APPEARING
ON THE REVERSE OF THIS NOTE IS DELIVERED BY THE TRANSFEROR TO THE REGISTRAR OR A
TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
H-1
THE ISSUER, THE REGISTRAR AND ANY TRANSFER AGENT MAY REFUSE TO EXCHANGE OR
REGISTER THE TRANSFER OF ANY OF THE ISSUER'S 6% CONVERTIBLE SUBORDINATED NOTES
DUE 2000 (THE "NOTES") IF SUCH TRANSFER (A) WOULD, OR IN THE DETERMINATION OF
THE BOARD OF DIRECTORS OF THE ISSUER MIGHT, RESULT IN A SINGLE PERSON
BENEFICIALLY OWNING (OR UPON CONVERSION OF ANY NOTES THEREUPON OWNING) DIRECTLY
OR INDIRECTLY MORE THAN 9.9% OF THE ISSUER'S COMMON STOCK (INCLUDING COMMON
STOCK ISSUABLE UPON CONVERSION OF NOTES HELD BY THAT PERSON BUT NOT COMMON STOCK
ISSUABLE UPON CONVERSION OF NOTES HELD BY OTHERS) OR (B) WOULD CAUSE THE ISSUER
TO FAIL TO MEET ANY REQUIREMENT NECESSARY FOR THE CONTINUED QUALIFICATION OF THE
ISSUER AS A REAL ESTATE INVESTMENT TRUST UNDER THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). IN ADDITION, THE HOLDER HEREOF
MAY NOT CONVERT THIS NOTE, AND THIS NOTE SHALL NOT BE CONVERTIBLE BY THE HOLDER,
IF AS A RESULT OF SUCH CONVERSION ANY PERSON WOULD BENEFICIALLY OWN, DIRECTLY OR
INDIRECTLY, MORE THAN 9.9% OF THE ISSUER'S OUTSTANDING COMMON STOCK. ANY
EXCHANGE OR REGISTRATION OF TRANSFER OF THIS NOTE IN CONTRAVENTION OF THE SECOND
PRECEDING SENTENCE, OR ATTEMPTED CONVERSION OF THIS NOTE IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING SENTENCE, SHALL BE NULL AND VOID AB INITIO AS TO THE
HOLDER, THE TRANSFEROR AND THE INTENDED TRANSFEREE, AS THE CASE MAY BE, OF THIS
NOTE, AND, IN THE CASE OF AN ATTEMPTED EXCHANGE OR REGISTRATION OF TRANSFER, THE
INTENDED TRANSFEREE WILL ACQUIRE NO RIGHTS OR ECONOMIC INTERESTS WHATSOEVER IN
THIS NOTE AND, IN THE CASE OF AN ATTEMPTED CONVERSION, NEITHER THE HOLDER NOR
ANY INTENDED TRANSFEREE WILL ACQUIRE ANY RIGHTS OR ECONOMIC INTERESTS IN THE
COMMON STOCK OF THE ISSUER ISSUABLE UPON SUCH CONVERSION. FOR PURPOSES OF THIS
PARAGRAPH, BENEFICIAL OWNERSHIP SHALL INCLUDE ACTUAL OWNERSHIP AS WELL AS
CONSTRUCTIVE OWNERSHIP AS SET FORTH IN BOTH CODE SECTION 544 (AS MODIFIED BY
CODE SECTION 856(h)(1)) AND CODE SECTION 318(a) (AS MODIFIED BY CODE SECTION
856(d)(5)).
THIS NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
H-2
No.R-
HEALTH CARE PROPERTY INVESTORS, INC.
DTC NOTE REPRESENTING
6% CONVERTIBLE SUBORDINATED NOTES DUE 2000
HEALTH CARE PROPERTY INVESTORS, INC., a corporation duly organized and
existing under the laws of the State of Maryland (the "Issuer," which term
includes any successor thereto under the terms of the Fiscal Agency Agreement),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
upon surrender hereof the principal sum of TWENTY-EIGHT MILLION SIX HUNDRED
THOUSAND UNITED STATES DOLLARS (U.S. $28,600,000), or such other amount (not to
exceed U.S. $100,000,000) as shall be the outstanding principal amount hereof as
endorsed on the Schedule attached hereto pursuant to the next succeeding
paragraph, on November 8, 2000, and to pay interest, semi-annually in arrears on
May 8 and November 8 of each year (each, an "Interest Payment Date"), commencing
May 8, 1994, on said principal sum at the rate of 6% per annum, calculated based
upon a 360-day year of twelve thirty-day months, from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on this Note, from and
including November 8, 1994, until payment of said principal sum has been made or
duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Fiscal
Agency Agreement, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date (whether or not such day is a Business Day) for such interest, which shall
be the April 23 or October 24 immediately preceding the relevant Interest
Payment Date, except that any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on a special
record date for the payment of such defaulted interest to be fixed by the Fiscal
Agent (a "Special Record Date"), notice whereof shall be given to Holders of
Registered Notes not less than 15 days prior to such Special Record Date, such
Special Record Date to be not less than 10 days preceding the date of payment of
such defaulted interest, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange.
Payments of principal shall be made upon the surrender of this Note at the
Corporate Trust Office of the Fiscal Agent in The City of New York or, subject
to any applicable laws and regulations, at the offices of Paying Agents that are
also Transfer Agents, by United States Dollar check drawn on, or (upon receipt
by the Fiscal Agent or a Paying Agent of appropriate transfer instructions) by
transfer to a United States Dollar account maintained by the Holder with, a bank
in The City of New York. Payment of interest on this Note may be made by United
States Dollar check drawn on a bank in The City of New York mailed to the
address of the Holder entitled thereto as such address shall appear in the Note
Register or, upon application by the Holder to the Registrar not later than the
Regular Record Date immediately preceding the relevant Interest Payment Date, by
transfer to a United States Dollar account (such transfers to be made only to
Holders of an aggregate principal amount of Registered Notes of U.S. $5,000,000
or more) maintained by the Holder with a bank in The City of New York.
H-3
Upon any exchange of a portion of this DTC Note for definitive Registered
Notes, upon any redemption of a portion of this DTC Note and upon any conversion
of a portion of this DTC Note into Common Stock, the portion of the principal
amount hereof so exchanged, redeemed or converted, as the case may be, shall be
endorsed by the Fiscal Agent on the Schedule attached hereto, whereupon the
principal amount hereof shall be decreased for all purposes by the amount so
exchanged, redeemed or converted and so endorsed. Upon any exchange of
definitive Registered Notes for interests in this DTC Note, the principal amount
of the Registered Notes so exchanged shall be endorsed by the Fiscal Agent on
the Schedule attached hereto, whereupon the principal amount hereof shall be
increased for all purposes by the amount so exchanged and endorsed.
For purposes of this Note, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction, and a "United States
Alien" means any person that, for United States federal income tax purposes, is
neither treated as a citizen or resident of the United States, nor a
corporation, partnership or other entity created or organized in or under the
laws of the United States or of any political subdivision thereof, nor an estate
or trust the income of which is subject to United States federal income tax
regardless of source.
The Terms and Conditions of the Notes endorsed on the reverse hereof shall
for all purposes have the same effect as though fully set forth at this place,
and capitalized terms used above but not otherwise defined shall have the
meanings ascribed thereto in such Terms and Conditions. All references herein to
"dollars," "Dollars," "$" and "U.S. $" are to such coin or currency of the
United States of America as at the time shall be legal tender for payment of
public and private debts.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Fiscal Agent.
IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC. has caused this
instrument to be duly executed under its seal.
Dated: November 3, 1993 HEALTH CARE PROPERTY
INVESTORS, INC.
[SEAL] By:______________________________
Title
By:______________________________
Title
H-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Fiscal Agency
Agreement.
CHEMICAL BANK, as Fiscal Agent
By:___________________________________________________________________
Authorized Officer
H-5
SCHEDULE OF CHANGES IN PRINCIPAL AMOUNT
PRINCIPAL AMOUNT OF
DEFINITIVE NOTES PRINCIPAL AMOUNT OF
SURRENDERED IN THIS DTC NOTE
EXCHANGE FOR CONVERTED/EXCHANGED RESULTING PRINCIPAL
INTERESTS IN THIS FOR DEFINITIVE NOTES/ AMOUNT OF THIS
DATE DTC NOTE REDEEMED DTC NOTE NOTATION MADE BY
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H-6
TERMS AND CONDITIONS OF THE NOTES
1. General
-------
(a) This Note is one of a duly authorized issue of debt securities of the
Issuer, designated as its 6% Convertible Subordinated Notes due 2000 (the
"Notes"), limited to the aggregate principal amount of U.S. $100,000,000 and
issued or to be issued pursuant to a Fiscal Agency Agreement (as amended or
supplemented from time to time, the "Fiscal Agency Agreement") dated as of
November 8, 1993 between the Issuer and Chemical Bank, as fiscal agent (the
"Fiscal Agent," which term shall include its successors as fiscal agent). The
Holders of the Notes will be entitled to the benefits of, be bound by, and be
deemed to have notice of, all of the provisions of the Fiscal Agency Agreement.
A copy of the Fiscal Agency Agreement is on file and may be inspected at the
Corporate Trust Office of the Fiscal Agent and at the offices of the Paying
Agents referred to below.
(b) The Notes are issuable in bearer form, with interest coupons attached,
in denominations of U.S. $5,000 (the "Bearer Notes"), and in fully registered
form without interest coupons, in the denominations of U.S. $1,000 and integral
multiples thereof (the "Registered Notes"), except that Registered Notes which
constitute Restricted Notes shall be issuable in minimum denominations of U.S.
$250,000 and integral multiples of U.S. $1,000 in excess thereof and shall
contain certain restrictions on transfer. The Bearer Notes are bearer
instruments, title to which (including title to any and all interest coupons
appertaining thereto) passes by delivery. The Registered Notes, and transfers
thereof, shall be registered as provided in paragraph 9 hereof and in the Fiscal
Agency Agreement. The bearer of any Bearer Note, the bearer of any interest
coupon and any person in whose name a Registered Note shall be registered may
(to the fullest extent permitted by applicable laws) be treated at all times, by
all persons and for all purposes, as the absolute owner of such Note or interest
coupon, as the case may be, whether or not such Note or interest coupon shall be
overdue, and regardless of any notice of ownership, theft, loss or other
interest therein or of any writing thereon.
2. Subordination
-------------
(a) The Notes shall be subordinated and subject, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of all Senior Indebtedness. The term "Senior Indebtedness" means the principal
of, premium, if any, and interest on, or substantially similar payments to be
made by the Issuer in respect of, the following, whether outstanding at the date
of execution of the Fiscal Agency Agreement or thereafter incurred, created or
assumed: (i) indebtedness of the Issuer for money borrowed or represented by
purchase money obligations, (ii) indebtedness of the Issuer evidenced by notes,
debentures, bonds, or other securities issued under the provisions of an
indenture, fiscal agency agreement or other instrument, (iii) obligations of the
Issuer as lessee under leases of property either made as part of any sale and
lease-back transaction to which the Issuer is a party or otherwise, (iv)
indebtedness of partnerships and joint ventures which is included in the
Issuer's consolidated financial statements, (v) indebtedness, obligations and
liabilities of others in respect of which the Issuer is liable contingently or
otherwise to pay or advance money or property or as guarantor, endorser or
otherwise or which the Issuer has agreed to purchase or otherwise acquire (but
excluding endorsements for collection in the ordinary course of business), and
(vi) any refunding or refinancing of any such indebtedness, obligation or
liability described in clauses (i) through (v) above, but excluding, however,
H-7
(1) any such indebtedness, obligation or liability referred to in clauses (i)
through (vi) above as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment to the
Notes or ranks pari passu with or junior to the Notes, (2) any such
---- -----
indebtedness, obligation or liability which is subordinated to indebtedness of
the Issuer to substantially the same extent as or to a greater extent than the
Notes are subordinated, and (3) the Notes. As used in the preceding sentence
the term "purchase money obligations" shall mean indebtedness or obligations
evidenced by a note, debenture, bond or other instrument (whether or not secured
by any lien or security interest but excluding indebtedness or obligations for
which recourse is limited to the property purchased) issued or assumed as all or
a part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, but shall not include any trade
accounts payable.
(b) (i) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all such Senior Indebtedness shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holder or holders of such Senior Indebtedness, before any payment is made on
account of the principal of or interest on the Notes or to acquire any of the
Notes.
(ii) During the continuance of any default with respect to Senior
Indebtedness entitling the holders thereof to accelerate the maturity thereof,
or if any such default would be caused by any payment upon or in respect of
the Notes, and, if the default is other than default in payment of the
principal of, or premium, if any, or interest on, such Senior Indebtedness,
upon written notice thereof given to the Issuer by a holder or holders of such
Senior Indebtedness or their representative or representatives, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Issuer upon or in respect of the Notes.
The Issuer shall give prompt written notice to the Fiscal Agent of any default
under any Senior Indebtedness or under any agreement pursuant to which the
Senior Indebtedness may have been issued.
(c) Upon any distribution of assets of the Issuer in any dissolution,
winding up, liquidation or reorganization of the Issuer (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full of the principal thereof and premium, if any,
and the interest due thereon before the Holders of the Notes are entitled
to receive any payment on account of the principal of or interest on the
Notes;
(ii) any payment or distribution of assets of the Issuer of any
kind or character, whether in cash, property or securities, to which the
Holders of the Notes would be entitled except for the provisions of this
paragraph 2, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or agent,
directly to the holders of the Senior Indebtedness, or their representative
or representatives or to the trustee or trustees or fiscal agent or fiscal
agents under any indenture or any other agreement (if any) under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such Senior
Indebtedness; and
H-8
(iii) in the event that notwithstanding the foregoing provisions of
this paragraph 2(c), any payment or distribution of assets of the Issuer of
any kind or character, whether in cash, property or securities, shall be
received by the Holders of the Notes on account of principal of or interest
on the Notes before all Senior Indebtedness is paid in full, or effective
provision made for its payment, such payment or distribution shall be
received and held in trust for and shall be paid over to the holders of the
Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives or to the trustee or trustees or fiscal
agent or fiscal agents under any indenture or any other agreement (if any)
under which any instruments evidencing any of such Senior Indebtedness may
have been issued, for application to the payment of such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness.
(d) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Notes shall be subrogated to the rights of the holders of the
Senior Indebtedness to receive payments or distributions of assets of the Issuer
applicable to the Senior Indebtedness until all amounts owing on the Notes shall
be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness by or on behalf of the
Issuer or by or on behalf of the Holders of the Notes by virtue of this
paragraph 2 which otherwise would have been made to the Holders of the Notes
shall, as between the Issuer and the Holders of the Notes, be deemed to be
payments by the Issuer to or on account of the Notes, it being understood that
the provisions of this paragraph 2 are and are intended solely for the purpose
of defining the relative rights of the Holders of the Notes, on the one hand,
and the holders of the Senior Indebtedness, on the other hand.
(e) Nothing contained in this paragraph 2 is intended to or shall
impair, as between the Issuer and the Holders of the Notes, the obligation of
the Issuer, which is absolute and unconditional, to pay to the Holders of the
Notes the principal of and interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Notes and creditors of
the Issuer other than the holders of the Senior Indebtedness, nor shall anything
herein prevent the Holder of any Note from exercising all remedies otherwise
permitted by applicable law upon default under the Fiscal Agency Agreement or
the Notes, subject to the rights, if any, under this paragraph 2 of the holders
of the Senior Indebtedness in respect of cash, property or securities of the
Issuer received upon the exercise of any such remedy. Upon any distribution of
assets of the Issuer referred to in this paragraph 2, the Holders of the Notes,
the Fiscal Agent and any Paying Agents of the Issuer shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this paragraph 2.
(f) Nothing contained in this paragraph 2 or in the Fiscal Agency
Agreement shall prevent the application by the Fiscal Agent or any Paying Agent
of any moneys deposited with it pursuant to the Fiscal Agency Agreement to the
payment of or on account of the principal of or interest on the Notes if, at the
time of such deposit, the Fiscal Agent or any such Paying Agent did not have
H-9
actual knowledge that such payment would have been prohibited by the foregoing
provisions of this paragraph 2.
(g) No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Issuer or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Issuer with the terms, provisions and covenants
hereof, regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
(h) The failure by the Issuer to make a payment on account of
principal of or interest on the Notes by reason of any provision in this
paragraph 2 shall not be construed as preventing the occurrence of an Event of
Default under paragraph 7 hereof.
(i) This paragraph 2 shall not apply to the obligations of the Issuer
to the Fiscal Agent and other agents of the Issuer pursuant to Section 10(a) of
the Fiscal Agency Agreement.
3. Payments and Paying Agents
--------------------------
(a) Except as otherwise provided on the face of the Bearer Notes,
principal of and interest on the Bearer Notes and interest coupons will be
payable in U.S. dollars only upon presentation and surrender of the Bearer Notes
or interest coupons, as the case may be, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States as
the Issuer may appoint from time to time. At the option of the Holder and
subject to applicable laws and regulations, such payments will be made by a
United States Dollar check drawn on a bank in The City of New York or (upon
receipt by the Fiscal Agent or a Paying Agent of appropriate transfer
instructions) by transfer to a United States Dollar account maintained by the
Holder hereof with a bank located outside the United States. Except as otherwise
provided on the face of the Bearer Notes, no payment on any Bearer Note or
interest coupon will be made at the Corporate Trust Office of the Fiscal Agent
or any other office or agency maintained by the Issuer in the United States nor
will any such payment be made by check mailed to any address, or by transfer to
an account maintained with a bank located, in the United States.
(b) Principal on the Registered Notes will by payable in U.S. dollars
against surrender of such Registered Notes at the Corporate Trust Office of the
Fiscal Agent in The City of New York or, subject to applicable laws and
regulations, at the office of any Paying Agent that is also a Transfer Agent, by
U.S. dollar check drawn on, or (upon receipt by the Fiscal Agent or a Paying
Agent of appropriate transfer instructions) by transfer to a U.S. dollar account
maintained by the Holder with, a bank located in The City of New York. Except as
otherwise provided on the face of the Restricted Notes with respect to defaulted
interest, payment of any installment of interest on a Registered Note will be
made to the person in whose name such Note (or one or more predecessor Notes) is
registered at the close of business on April 23 or October 24 (whether or not a
Business Day) (each, a "Regular Record Date") immediately preceding the relevant
Interest Payment Date. Payment of such interest will be made by a U.S. dollar
check drawn on a bank located in The City of New York mailed to the Holder
entitled thereto at such Holder's address as it appears in the Note Register or,
upon application by the Holder to the Registrar not later than the Regular
Record Date immediately preceding the relevant Interest Payment Date, by
transfer to a U.S. dollar account (such transfer to be made only to Holders of
H-10
an aggregate principal amount of Registered Notes of $5,000,000 or more)
maintained by the Holder with a bank in The City of New York.
(c) The Issuer has initially appointed the Paying Agents, Transfer
Agents, Conversion Agents and Registrar listed at the foot of this Note. The
Issuer may at any time terminate the appointment of the Fiscal Agent, any Paying
Agent, Transfer Agent, Conversion Agent or the Registrar and appoint a successor
Fiscal Agent, a successor Registrar or co-Registrars and additional or other
Paying Agents, Transfer Agents and Conversion Agents and approve any change in
the office through which the Fiscal Agent, any Paying Agent, Transfer Agent,
Conversion Agent or the Registrar acts; provided, however, that until all of the
-------- -------
Notes have been delivered to the Fiscal Agent for cancellation, or moneys
sufficient to pay the principal of and interest on the Notes have been made
available for such payment and either paid or returned to the Issuer as provided
in the Fiscal Agency Agreement, the Issuer will maintain a Fiscal Agent having a
Corporate Trust Office in The City of New York and a Registrar and Transfer
Agent having a specified office in The City of New York, a Paying Agent and a
Conversion Agent having specified offices in The City of New York only for
(except as otherwise provided herein or in the Fiscal Agency Agreement) payments
with respect to Registered Notes and for the surrender of Registered Notes for
conversion, and a Paying Agent, a Conversion Agent and a Transfer Agent having
specified offices in London and such other European cities specified by the
Issuer for payments with respect to Bearer Notes and interest coupons and for
surrender of Bearer Notes for conversion, provided that, so long as the Notes
are listed by the Issuer on the Luxembourg Stock Exchange and such Exchange so
requires, the Issuer will maintain a Paying Agent, a Conversion Agent and a
Transfer Agent in Luxembourg. Notice of any such termination or appointment of
any change in the office through which the Fiscal Agent, any Paying Agent,
Transfer Agent, Conversion Agent or any Registrar will act will be promptly
given in the manner described in paragraph 13 hereof.
(d) All moneys deposited by the Issuer with the Fiscal Agent or with
any Paying Agent or then held by the Issuer in trust for payment of the
principal of or interest on any Note and remaining unclaimed for two years after
such principal or interest (including sums deducted from payment upon redemption
of Bearer Notes pursuant to paragraph 5(e)) shall have become due and payable
shall be repaid to the Issuer upon its written request and, to the extent
permitted by law, the Holder of such Note or any interest coupon appertaining
thereto thereafter may look only to the Issuer for payment thereof without
interest; provided, however, that all such amounts payable in respect of Bearer
Notes will be payable outside the United States within the meaning of Section
1.163-5(c)(2)(v) of the United States Treasury regulations.
(e) Should the Issuer at any time default in the payment of any
principal of or interest on this Note, the Issuer will pay interest on the
amount in default (to the extent permitted by law in the case of interest on
interest) at the rate of 6% per annum, calculated based upon a 360-day year of
twelve thirty-day months.
(f) Each Holder of a Note and the Fiscal Agent each recognizes and
agrees that the obligations of the Issuer under the Fiscal Agency Agreement and
the Notes and all documents delivered in the name of the Issuer in connection
therewith do not and shall not constitute personal obligations of the directors,
officers, employees, agents or shareholders of the Issuer and shall not involve
any claim against or personal liability on the part of any of them, and that all
persons, including the Holders and the Fiscal Agent, shall look solely to the
assets of the Issuer for the payment of any claim thereunder
H-11
or hereunder or for the performance thereof or hereof and shall not seek
recourse against such directors, officers, employees, agents or shareholders of
the Issuer or any of them or any of their personal assets for such satisfaction
4. Additional Amounts. The Issuer will pay to the Holder of any Note or
------------------
any interest coupon who is a United States Alien, as additional interest, such
amounts ("Additional Amounts") as may be necessary 80 that every net payment on
such Note or coupon (including payment of the principal of and interest on such
Note and payment through the delivery of Common Stock (and cash in lieu of
fractional shares) upon conversion but not including any payment with respect to
such Common Stock), after deduction or withholding for or on account of any
present or future tax, assessment or other governmental charge imposed upon or
as result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount provided
in such Note or coupon to be then due and payable; provided, however, that the
-------- -------
foregoing obligation to pay Additional Amounts will not apply to:
(a) any tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or former
connection between such Holder or beneficial owner of such Note (or between
a fiduciary, settlor or beneficiary of, or a person holding a power over,
such Holder, if such Holder is an estate or a trust, or a member or
shareholder of such Holder, if such Holder is a partnership or a
corporation) and the United States or any taxing authority thereof or
therein, including without limitation such Holder (or such fiduciary,
settlor, beneficiary, person holding a power, member or shareholder) being
or having been a citizen or resident of the United States or treated as a
resident thereof, or being or having been engaged in a trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's or beneficial owner's past or present status as a
personal holding company, a foreign personal holding company with respect
to the United States, a private foundation or other tax-exempt organization
with respect to the United States, a controlled foreign corporation for
United States tax purposes or as a corporation that accumulates earnings to
avoid United States federal income tax;
(b) any estate, inheritance, gift, excise, sales, transfer or
personal property tax or any similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge that would
not have been imposed but for the presentation by the Holder of a Note or
coupon for payment more than 10 days after the date on which such payment
became due and payable or the date on which payment thereof was duly
provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments on a Note or coupon;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment on a Note or coupon, if
such payment can be made without such withholding by any other Paying Agent
in Europe;
H-12
(f) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with any applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the
United States of the Holder or beneficial owner of a Note or coupon if,
without regard to any tax treaty, such compliance is required by statute or
regulation of the United States as a precondition to relief or exemption
from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed on
a Holder that actually or constructively owns 10% or more of the combined
voting power of all classes of capital stock of the Issuer (including by
virtue of the right to convert Notes) or that is a controlled foreign
corporation related to the Issuer through stock ownership;
(h) any tax, assessment or other governmental charge which would
not have been imposed but for the fact that such Note constitutes a "United
States real property interest" as defined in Section 897(c)(1) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), with
respect to the beneficial owner of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g)
and (h);
nor shall Additional Amounts be paid with respect to a payment on a Note or
coupon to a Holder that is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to Additional Amounts (or payment of Additional
Amounts would not have been necessary) had such beneficiary, settlor, member or
beneficial owner been the Holder of such Note or coupon. "United States" and
"United States Alien" have the respective meanings set forth on the face of this
Note.
Whenever in the Fiscal Agency Agreement, the Notes or any interest
coupon there is mentioned, in any context, the payment of principal of or
interest on, or in respect of, such Note or coupon, such mention shall be deemed
to include mention of the payment of Additional Amounts provided for in this
paragraph 4 and paragraph 5(c) (it being understood that the term "Additional
Amounts" includes Additional Amounts payable pursuant to paragraph 5(c)) to the
extent that in such context Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this paragraph 4 or paragraph
5(c), as the case may be.
5. Redemption
----------
(a) The Notes may be redeemed at the option of the Issuer, in whole
or in part, upon not more than 60 nor less than 30 days' notice prior to the
date fixed for redemption (any date designated for redemption in a notice
pursuant to this paragraph 5 is hereinafter referred to as a "Redemption Date"),
which notice will be irrevocable, at any time on or after November 15, 1998, at
a redemption price equal to 100% of the principal amount thereof plus accrued
interest thereon to the Redemption Date.
(b) The Notes may also be redeemed at the option of the Issuer, in
whole but not in part, at any time, upon not more than 60 nor less than 30 days'
notice prior to the Redemption Date
H-13
(which notice will be irrevocable), at a redemption price equal to 100% of the
principal amount thereof plus accrued interest thereon to the Redemption Date
together with any Additional Amounts, if the Issuer has or will become obligated
to pay such Additional Amounts or there is a substantial probability (in the
written opinion of independent counsel selected by the Issuer, which counsel is
reasonably acceptable to the Fiscal Agent) that the Issuer will be required to
pay such Additional Amounts as a result of any change in, or amendment to, the
laws (or any regulations (including proposed regulations) or rulings promulgated
thereunder) of the United States or any taxing authority thereof or therein, or
any change in, or amendment to, the application or official interpretation of
such laws, regulations or rulings (including a holding by a court of competent
jurisdiction) or any other action taken by a taxing authority or court in the
United States (whether or not taken with respect to the Issuer), which change,
amendment or action becomes effective after October 25, 1993, and such
obligation cannot be avoided by the Issuer taking reasonable measures available
to it, not including assigning or transferring the Issuer's obligations under
the Notes to another obligor; provided, that (1) no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to pay any such Additional Amounts were the Issuer to
make a payment in respect of the Notes and (2) at the time such notice of
redemption is given, the obligation to pay such Additional Amounts (at the time
of payments in respect of the Notes) remains in effect. Prior to the giving of
any notice of redemption pursuant to this paragraph 5(b), the Issuer shall
deliver to the Fiscal Agent (i) a certificate stating that the conditions
precedent to the right of the Issuer so to redeem have occurred and setting
forth a statement of facts showing that such conditions precedent have occurred
and (ii) a written opinion of independent counsel selected by the Issuer, which
counsel shall be reasonably acceptable to the Fiscal Agent, to the effect that
the Issuer has or will become obligated to pay such Additional Amounts (at the
time of payments in respect of the Notes) as a result of such change, amendment
or action. The Issuer's right to redeem the Notes shall continue as long as the
Issuer is obligated to pay such Additional Amounts, notwithstanding that the
Issuer shall have theretofore made payments of Additional Amounts.
(c) In addition, if the Issuer shall determine, based upon the
written opinion of independent counsel selected by the Issuer, which counsel is
reasonably acceptable to the Fiscal Agent, that any payment made outside the
United States by the Issuer or any of its Paying Agents of the full amount of
principal or interest due in respect of any Bearer Note or interest coupon
would, under any laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Issuer, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Note or coupon that is a United
States Alien (other than such a requirement (1) that would not be applicable to
a payment made by the Issuer or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (2) that can be satisfied by such custodian, nominee or
other agent certifying that the beneficial owner is a United States Alien,
provided that, in each case referred to in clause (1)(ii) or (2), payment by
such custodian, nominee or agent to such beneficial owner is not otherwise
subject to any such requirement, or (3) which would not be applicable but for
the fact that such Bearer Note constitutes a "United States real property
interest," as defined in Section 897(c)(1) of the Code, with respect to the
beneficial owner of such Bearer Note (certification under circumstances
described in clauses (1) through (3) above being an "Allowed Certification")),
the Issuer at its election will either (x) redeem the Notes, in whole but not in
part, upon notice prior to the Redemption Date given in the manner provided
below, at a redemption price equal to 100% of the principal amount plus accrued
interest to the Redemption Date, or (y) if and so long as the conditions of the
next succeeding paragraph are satisfied, pay the Additional Amounts
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specified in such paragraph. The Issuer shall make such determination as soon as
practicable and give, in the manner provided in paragraph 13 herein, prompt
notice thereof (the "Determination Notice"), stating the effective date of such
certification, documentation, information or reporting requirement, whether the
Issuer elects to redeem the Notes or to pay the Additional Amounts specified in
the next succeeding paragraph, and (if applicable) the last date by which the
redemption of the Notes must take place, as provided in the next succeeding
sentence. If the Notes are to be redeemed pursuant to this paragraph, such
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Issuer shall specify by notice
to the Fiscal Agent at least 65 days before the Redemption Date. Notice of such
redemption shall be given to the Holders of the Notes, not earlier than 60 nor
less than 30 days prior to the Redemption Date, as described in paragraph 5(d)
below. Notwithstanding the foregoing, the Issuer shall not so redeem the Notes
if the Issuer shall subsequently determine, based upon the written opinion of
independent counsel selected by the Issuer, which counsel is reasonably
acceptable to the Fiscal Agent, not less than 30 days prior to the Redemption
Date, that subsequent payments on the Bearer Notes and coupons would not be
subject to any such certification, documentation, information or other reporting
requirement, in which case the Issuer shall give prompt notice as provided in
paragraph 5(d) of such subsequent determination and any earlier redemption
notice shall be revoked and of no further effect. If the Issuer elects as
provided in clause (y) above to pay Additional Amounts, the Issuer may, as long
as the Issuer is obligated to pay such Additional Amounts, redeem all the Notes,
at any time, in whole but not in part, at a redemption price equal to 100% of
the principal amount plus accrued interest to the Redemption Date, together with
any Additional Amounts the Issuer is obligated to pay pursuant to the next
succeeding paragraph, upon notice as described in paragraph 5(d) below given not
less than 30 nor more than 60 days prior to the Redemption Date.
Notwithstanding the foregoing, if and so long as the certification,
documentation, information or other reporting requirement referred to in the
preceding paragraph would be fully satisfied by payment of a backup withholding
tax or similar charge, the Issuer may elect, by so stating in the Determination
Notice, to have the provisions of this paragraph apply. In such event, the
Issuer will pay as Additional Amounts such amounts as may be necessary so that
every net payment made, following the effective date of such requirements,
outside the United States by the Issuer or any of its Paying Agents in respect
of any Bearer Notes or any interest coupon of which the beneficial owner is a
United States Alien (but without any requirement that the nationality, residence
or identity of such beneficial owner be disclosed to the Issuer, any Paying
Agent or any governmental authority), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other than such a tax
or charge that is (1) the result of a failure to provide an Allowed
Certification or (2) imposed as a result of the fact that the Holder or
beneficial owner of such Note or any coupon is within the category of persons
described in clause (a) of paragraph 4 or (3) imposed as a result of
presentation of such Note or any coupon for payment more than 10 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, or (4) imposed as a result of a
person's past or present actual or constructive ownership (including by virtue
of the right to convert the Notes) of 10% or more of the total combined voting
power of all classes of stock of the Issuer entitled to vote) will not be less
than the amount provided for in such Note or interest coupon to be then due and
payable. If the Issuer elects to pay Additional Amounts pursuant to this
paragraph, the Issuer shall have the right to redeem the Notes at any time in
whole (but not in part) as provided in and subject to the provision of the last
two sentences of the immediately preceding paragraph. If the Issuer elects to
pay Additional Amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Issuer shall
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redeem the Notes in whole (but not in part), upon not less than 30 nor more than
60 days' notice prior to the Redemption Date, at a redemption price equal to
100% of the principal amount thereof plus accrued interest to the Redemption
Date, together with Additional Amounts, subject to the provisions of the
penultimate sentence of the immediately preceding paragraph. Any redemption
payments made by the Issuer pursuant to the two immediately preceding sentences
shall be subject to the continuing obligation of the Issuer to pay Additional
Amounts pursuant to this paragraph.
(d) Notice of intention to redeem the Notes pursuant to paragraphs
5(a) through 5(c), and any notice given pursuant to the penultimate sentence of
the first paragraph of Section 5(c), shall be given to Holders and to the Fiscal
Agent in accordance with paragraph 13 hereof and Section 7 of the Fiscal Agency
Agreement. Notice having been given, the Notes called for redemption shall
become due and payable on the Redemption Date and (upon presentation and
surrender thereof, together with all interest coupons, if any, maturing
subsequent to the Redemption Date) will be paid at the redemption price plus
accrued and unpaid interest to the Redemption Date plus, if applicable,
Additional Amounts.
(e) Bearer Notes must be presented for redemption together with all
unmatured interest coupons, if any, appertaining thereto, failing which the
amount of any missing unmatured interest coupons will be deducted from the sum
due for payment. Subject to paragraph 3(d) hereof, any amounts so deducted will
be paid in the manner mentioned in paragraph 3(a) hereof against surrender of
the related missing interest coupons. All unpaid interest installments
represented by interest coupons which shall have matured on or prior to the
Redemption Date specified in such notice shall continue to be payable to the
Holders of such interest coupons, and the amount payable to the Holders of
Bearer Notes presented for redemption shall not include such unpaid installments
of interest unless interest coupons representing such installments shall
accompany the Notes presented for redemption. Interest payable on Registered
Notes on any Interest Payment Date that is on or prior to a Redemption Date will
be paid to the Holder of record on the relevant Regular Record Date (or, if
applicable, Special Record Date). From and after the Redemption Date, if moneys
for the redemption of the Notes shall have been made available as provided
herein and in the Fiscal Agent Agreement for redemption on the Redemption Date,
the Notes called for redemption shall cease to bear interest, any interest
coupons appertaining thereto maturing subsequent to the Redemption Date shall be
void, and the only right of the Holders of such Notes and any interest coupons
appertaining thereto shall be to receive payment of the redemption price and all
unpaid interest accrued to the Redemption Date, together with any Additional
Amounts.
6. Conversion. Subject to the provisions of the Fiscal Agency Agreement,
----------
the Holder of any Note has the right at such Holder's option at any time on or
after the Exchange Date and prior to the close of business on November 8, 2000
or, as to all or any portion of such Note called for redemption, prior to the
close of business on the Redemption Date, to convert the principal of any such
Note or, in the case of any Registered Note of a denomination greater than U.S.
$1,000, any portion of such principal which is U.S. $1,000 or an integral
multiple thereof (provided that, in the case of Restricted Notes, the
unconverted principal amount of such Note is at least U.S. $250,000), into that
number of fully paid and nonassessable shares of Common Stock as is obtained by
dividing the principal amount of such Note or portion thereof to be converted by
the conversion price of U.S. $37.806 per share of Common Stock, as such
conversion price may be adjusted from time to time as provided in the Fiscal
Agency Agreement, and rounding the result to the nearest 1/100th of a share,
upon surrender of the Note together with all interest coupons, if any, maturing
after the Conversion Date and with the conversion notice thereon (or a
substantially similar notice the form of which may be obtained from the
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Registrar or any Conversion Agent) duly executed, to the Issuer at the office of
a Conversion Agent as provided in the next two succeeding sentences, duly
executed by the Holder thereof or his attorney duly authorized in writing.
Bearer Notes must be surrendered for conversion at the office of any Conversion
Agent outside the United States, provided that if conversion at all Conversion
Agents outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions, Bearer Notes
may be surrendered for conversion at the Corporate Trust Office of the Fiscal
Agent. Registered Notes may be surrendered at the Corporate Trust Office of the
Fiscal Agent or, subject to applicable laws and regulations, at the office of
any Conversion Agent outside the United States. No adjustment in respect of
interest or dividends will be made upon any conversion; provided, however, that,
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if any Registered Note shall be surrendered for conversion during the period
from the close of business on any Regular Record Date to the opening of business
on the following Interest Payment Date, such Registered Note (unless it or the
portion thereof being converted shall have been called for redemption on a date
in such period) must be accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date on the principal amount being
converted; provided, further, that no such payment need be made if there shall
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exist at the time of conversion a default in payment of interest on the Notes.
No fractional shares will be issued upon any conversion, but an adjustment in
cash will be made, as provided in the Fiscal Agency Agreement, in respect of any
fraction of a share which would otherwise be issuable upon the surrender of any
Note or Notes for conversion. Interest coupons with Interest Payment Dates on or
before the date of conversion (including coupons so maturing but in default)
will continue to be payable, as set forth in the Fiscal Agency Agreement,
notwithstanding the exercise of the right of conversion by the Holder of the
Note to which such coupons appertain. Interest payable on Registered Notes on
any Interest Payment Date that is on or prior to the Conversion Date will be
paid to the Holder of record on the relevant Regular Record Date (or, if
applicable, Special Record Date).
The right of the Holder hereof to convert this Note is subject to
certain limitations as set forth herein and in the legend on the face of this
Note and, in the case of Restricted Notes, as set forth in the Fiscal Agency
Agreement, and may be subject to the payment of certain taxes and duties as set
forth in Section 14(g) of the Fiscal Agency Agreement.
7. Events of Default. In case one or more of the following events (herein
-----------------
referred to as "Events of Default") (whatever the reason for such Event of
Default and whether 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) shall
have occurred and be continuing, that is to say:
(a) default in the payment of any installment of interest
(including any Additional Amounts payable with respect thereto) on any of
the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
or redemption price of any of the Notes (including, in each case, any
Additional Amounts payable with respect thereto) as and when the same shall
become due and payable whether at maturity, upon redemption or otherwise;
or
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(c) failure on the part of the Issuer duly to observe or perform
any other terms, covenants or agreements on the part of the Issuer
contained in the Notes or in the Fiscal Agency Agreement for a period of 60
days after the date on which written notice specifying such failure shall
have been given to the Issuer by the Fiscal Agent or by the Holders of 25%
or more in aggregate principal amount of the Notes then outstanding; or
(d) default under any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or evidenced,
any indebtedness of the Issuer for borrowed money in an aggregate principal
amount in excess of $20,000,000, whether such indebtedness existed on the
date of the Fiscal Agency Agreement or shall thereafter be created or
incurred, shall happen and shall result in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have been
rescinded or annulled within 30 days after there shall have been given to
the Issuer, by the Fiscal Agent or by the Holders of 25% or more in
aggregate principal amount of the Notes then outstanding, a written notice
specifying such default and requiring the Issuer to cause such acceleration
to be rescinded or annulled; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Issuer or for any
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance of any of the
foregoing;
then in each and every such case, the Fiscal Agent or the Holders of 25% or more
in aggregate principal of the Notes then outstanding may declare the principal
of and interest on all Notes to be due and payable immediately. The amount
payable in respect of this Note upon default shall be the principal amount
hereof together with accrued interest to the date such payment is made as
provided in paragraph 3 hereof. At any time after the declaration of
acceleration with respect to the Notes has been made, but before a judgment or
decree based on such acceleration has been obtained, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may rescind and
annul such declaration by written notice to the Issuer and the Fiscal Agent,
provided that (X) the Issuer has paid or deposited with the Fiscal Agent a sum
sufficient to pay (i) all overdue installments of interest on the Notes, (ii)
the principal of any Note which has become due otherwise than by such
declaration of acceleration and interest thereon, (iii) to the extent that
payment of such interest is lawful, interest upon overdue installments of
interest due on the Notes, (iv) all sums paid or advanced by the Fiscal Agent
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Fiscal Agent, its agents
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and counsel; and (Y) all Events of Default with respect to the Notes, other than
the non-payment of Notes which has become due solely by such declaration of
acceleration, have been cured or waived.
8. Consolidation, Merger or Sale of Assets
---------------------------------------
(a) The Issuer may, without the consent of the Holders of the Notes,
consolidate with, or merge into, or transfer, sell or convey all or
substantially all of its assets to, a corporation or trust or other entity (the
"Successor Corporation") that is organized under the laws of the United States
or a state thereof or the District of Columbia, provided that (i) such Successor
Corporation shall expressly assume the due and punctual payment of the principal
of, and interest on, all the Notes, and the due and punctual performance of all
the covenants and obligations of the Issuer under the Notes, interest coupons
and Fiscal Agency Agreement, by supplemental agreement satisfactory to the
Fiscal Agent, (ii) the Fiscal Agent shall have received the certificate and
opinion of legal counsel required pursuant to Section 12 of the Fiscal Agency
Agreement, (iii) the Successor Corporation shall not, immediately after such
consolidation, merger, transfer, sale or conveyance, be in default in the
performance of any covenants or obligations of the Issuer in the Notes, interest
coupons or Fiscal Agency Agreement, (iv) immediately after such consolidation,
merger, transfer, sale or conveyance, the Notes and interest coupons will not be
subject to United States federal estate tax as a result thereof, if held by a
person who at the time of death is not a citizen or resident of the United
States of America, unless the Successor Corporation shall have agreed, by
supplemental agreement satisfactory to the Fiscal Agent, to indemnify the
persons liable therefor for the amount of United States federal estate tax
attributable to and payable in respect of any Notes and interest coupons
includable in the gross estate of the person who at the time of death is not a
citizen or resident of the United States of America, and (v) such Successor
Corporation waives, in the supplemental agreement referred to in clause (i)
above, any right to redeem the Notes under circumstances in which the Successor
Corporation would be entitled to redeem the Notes but the Issuer would not have
been so entitled to redeem if such consolidation, merger, transfer, sale or
conveyance had not occurred. The amount of tax attributable to any Notes and
interest coupons for purposes of clause (iv) of this paragraph shall be
calculated in accordance with the provisions of the Code and any successor
thereto.
(b) Upon any merger, consolidation, transfer, sale or conveyance as
provided in Section 8(a) hereof, the Successor Corporation shall succeed to and
be substituted for, and may exercise every right and power of and be subject to
all the obligations of, the Issuer under the Notes, interest coupons and Fiscal
Agency Agreement, with the same effect as if the Successor Corporation had been
named as the Issuer therein and herein and the Issuer shall be released from its
liability as obligor under the Notes, interest coupons and Fiscal Agency
Agreement.
9. Replacement, Exchange and Transfer of Notes
-------------------------------------------
(a) In case any Note or interest coupon shall become mutilated,
defaced or be apparently destroyed, lost or stolen, the Issuer in its discretion
may execute, and, upon the request of the Issuer, the Fiscal Agent shall
authenticate and deliver, a new Note (with, in the case of a Bearer Note,
appropriate interest coupons attached) bearing a serial number not
contemporaneously outstanding upon receipt by the Fiscal Agent of, and in
exchange and substitution for, the mutilated or defaced Note or the Note to
which the mutilated or defaced interest coupon was attached, or in lieu of and
in substitution for the apparently destroyed, lost or stolen Note or the Note to
which the apparently destroyed, lost or
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stolen interest coupon was attached. In every case of destruction, loss or
theft, the applicant for a substitute Note shall furnish to the Issuer and to
the Fiscal Agent such security or indemnity as may be required by them to
indemnify and defend and to save each of them and any agent of the Issuer or the
Fiscal Agent harmless, and evidence to their satisfaction of the apparent
destruction, loss or theft of such Note or interest coupon and of the ownership
thereof. Upon the issuance of any substitute Note, the Issuer 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 Fiscal Agent) connected therewith.
(b) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 9(e) hereof, a Bearer Note or
Notes may be exchanged for a Registered Note or Notes of equal aggregate
principal amount in such authorized denominations as may be requested by the
Holder by surrender of such Bearer Note or Notes and all unmatured interest
coupons (if any) appertaining thereto to the office of the Registrar, or to the
office of any other Transfer Agent that may be appointed by the Issuer, together
with a written request for the exchange. Registered Notes, including Registered
Notes received in exchange for Bearer Notes, may not be exchanged for Bearer
Notes. Upon the terms and subject to the conditions set forth in the Fiscal
Agency Agreement, and subject to paragraph 9(e) hereof, a Registered Note or
Registered Notes may be exchanged for a Registered Note or Registered Notes of
equal aggregate principal amount, but in such different authorized denominations
as may be requested by the Holder by surrender of such Note or Notes to the
office of the Registrar, or to the office of any other Transfer Agent that may
be appointed by the Issuer, together with a written request for the exchange.
(c) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 9(e) hereof, a Registered Note
may be transferred in whole or in part (in the amount of U.S. $1,000 (or U.S.
$250,000 in the case of Restricted Notes) or an integral multiple of U.S. $1,000
in excess thereof) by the Holder or Holders surrendering the Registered Note for
registration of transfer at the office of the Registrar or at the office of any
Transfer Agent, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Registrar or any such
Transfer Agent, as the case may be, duly executed by, the Holder or Holders
thereof or his or their attorney or attorneys duly authorized in writing;
provided, however, that registration of transfer of Restricted Notes shall be
- -------- -------
subject to the restrictions on transfers set forth in Section 5 of the Fiscal
Agency Agreement and in the legend on the face of such Notes).
(d) No service charge shall be made for any exchange or registration
of transfer of Notes (except for the expenses of delivery by other than regular
mail), but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto other than
in the case of exchanges made upon redemption or conversion of a Note in part
not involving any transfer.
(e) Neither the Registrar nor any Transfer Agent shall be required to
register the transfer of or exchange any Notes for a period of 15 days preceding
any date for the selection of Notes to be redeemed, except in connection with a
conversion of Notes as contemplated by paragraph 6, or to register the transfer
of or exchange any Note called or being called for redemption except, in the
case of a Note to be redeemed or converted in part, the portion thereof not to
be so redeemed or converted; provided, however, in the event that the Notes have
-------- -------
been called for redemption, a Bearer Note may be
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exchanged for a Registered Note which is simultaneously surrendered to the
Registrar or any Transfer Agent making such exchange with written instruction
for payment consistent with the provisions of the Notes, interest coupons and
Fiscal Agency Agreement.
10. Modifications and Amendment; Noteholders' Meetings
--------------------------------------------------
(a) The Fiscal Agency Agreement and the Notes and interest coupons
may be modified or amended by the parties to the Fiscal Agency Agreement,
without the consent of the Holder of any Note or interest coupon, for the
purpose of (i) adding to the covenants of the Issuer for the benefit of the
Holders of Notes or interest coupons or surrendering any right or power
conferred upon the Issuer; (ii) providing for the payment of principal and
interest in respect of Bearer Notes in the United States under the circumstances
described on the face hereof or providing for the conversion of Bearer Notes in
the United States under the circumstances described in paragraph 6 hereof; (iii)
effecting any succession or assumption as described under paragraph 8(a) hereof;
(iv) providing for the conversion rights of the Holders of the Notes pursuant to
Section 14(f) of the Fiscal Agency Agreement; or (v) curing any ambiguity or
correcting or supplementing any defective provision contained in the Fiscal
Agency Agreement or the Notes or interest coupons or making any other amendments
or modifications which the Issuer and the Fiscal Agent may deem necessary or
desirable and which, in any such case, will not adversely affect the interests
of the Holders of the Notes or interest coupons in any material respect, to all
of which each Holder of any Note or interest coupon shall, by acceptance
thereof, be deemed to consent.
(b) Modifications and amendments to the Fiscal Agency Agreement and
to the Notes and interest coupons may be made, and future compliance therewith
or past defaults thereunder by the Issuer may be waived, with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Notes at the time outstanding, or of such percentage stated in paragraph
10(c) hereof as may act at a meeting of Holders of the Notes held in accordance
with the provisions of the Fiscal Agency Agreement; provided, however, that no
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such modification, amendment or waiver may, without the written consent or the
affirmative vote of the Holder of each Note affected thereby, (i) change the
stated maturity of the principal of, or the due date for any installment of
interest on, any such Note; (ii) reduce the principal amount of, or interest on,
any such Note or reduce the amount payable on any such Note in the event of
redemption or default; (iii) change the obligation of the Issuer to pay
Additional Amounts in respect of such Note; (iv) change the currency of payment
of principal of or interest on any such Note; (v) impair the right to institute
suit for the enforcement of any such payment on or with respect to any such
Note; (vi) modify the obligations of the Issuer to maintain the Registrar, a
Paying Agent, a Transfer Agent and a Conversion Agent in The City of New York
and Europe, and a Corporate Trust Office of the Fiscal Agent in The City of New
York, in accordance with paragraph 3(c) hereof; (vii) except as otherwise
permitted or contemplated the provisions of the Notes concerning the merger,
consolidation or sale of all or substantially all of the assets of the Issuer,
adversely affect the right to convert the Notes into Common Stock on the terms
set forth herein and in the Fiscal Agency Agreement; (viii) modify the
subordination provisions of the Notes in a manner adverse to the Holders of the
Notes; or (ix) reduce the above-stated percentage of aggregate principal amount
of the Notes outstanding necessary to modify or amend the Fiscal Agency
Agreement or the Notes or interest coupons or to waive any future compliance or
past default, or reduce the quorum requirements or the percentage of votes
required for the adoption of any action at a Holder's meeting, or reduce the
percentage in aggregate principal amount of the Notes necessary to rescind and
annul a
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declaration of acceleration pursuant to paragraph 7. Any modifications,
amendments or waivers to the Fiscal Agency Agreement or to the Notes or interest
coupons will be conclusive and binding on all Holders of the Notes and on all
Holders of interest coupons, whether or not they have given such consent or were
present at such meeting, and on all future Holders of Notes and interest
coupons, whether or not notation of such modifications, amendments or waivers is
made upon the Notes or interest coupons. Any instrument given by or on behalf of
any Holder of a Note in connection with any consent to any such modification,
amendment or waiver will be irrevocable once given and will be conclusive and
binding on all subsequent Holders of such Note and any interest coupons
appertaining thereto.
(c) At a meeting of the Holders of the Notes for the purpose of
approving a modification or amendment to, or obtaining a waiver of, any covenant
or condition set forth in the Fiscal Agency Agreement or the Notes or coupons,
persons entitled to vote a majority in aggregate principal amount of the Notes
at the time outstanding shall constitute a quorum. In the absence of a quorum at
any such meeting, the meeting may be adjourned for a period of not less than 10
days; 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; at the
reconvening of any meeting further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the Notes at the time
outstanding shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. At a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid, any resolution to modify
or amend, or to waive compliance with, any of the covenants or conditions
referred to above shall be effectively passed and decided if passed and decided
by the person entitled to vote a majority in aggregate principal amount or, if
the quorum for such meeting represents less than a majority in aggregate
principal amount of the Notes at the time outstanding, 66-2/3% in aggregate
principal amount of the Notes represented and voting at the meeting.
11. Non-Business Days; Calculation of Interest
------------------------------------------
(a) In any case where the date of maturity of the principal of
or interest on the Notes or the Redemption Date of any Notes shall not be, in
the place where a Note or interest coupon is presented for payment, a Business
Day, then payment of principal or interest need not be made on such date at such
place but may be made on the next succeeding Business Day following such date at
such place of payment, with the same force and effect as if made on the date of
maturity or the Redemption Date, and no interest shall accrue for the period
from and after the date of maturity or the Redemption Date, as the case may be.
Except as otherwise provided in the Fiscal Agency Agreement, the term "Business
Day," with respect to any place of payment, place of conversion or any other
place, as the case may be, shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York or that place of payment, place of conversion or other place, as the case
may be, are authorized or obligated by law or executive order to close.
(b) Interest in respect of any period of less than one year
shall be calculated on the basis of a 360-day year of twelve thirty-day months
and, in the case of an incomplete month, the number of days elapsed in such
incomplete month.
12. Fiscal Agent. Anything herein or in the Fiscal Agency Agreement
------------
to the contrary notwithstanding, in acting under the Fiscal Agency Agreement and
in connection with the Notes and
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interest coupons, the Fiscal Agent and each other agent of the Issuer under the
Fiscal Agency Agreement is acting solely as agent of the Issuer and does not
assume any obligation towards or relationship of agency or trust for or with the
owner or Holder of this Note or any interest coupon appertaining hereto or the
holder of any Senior Indebtedness, except that all funds held by the Fiscal
Agent or any other Paying Agent of the Issuer for payment of principal of or
interest on this Note shall, subject to paragraph 3(d), be held in trust by it
and applied, as set forth herein and in the Fiscal Agency Agreement, but need
not be segregated from other funds held by it, except as required by law.
Without limitation to the foregoing, (i) any requirement that any agreement,
opinion of counsel or other document be satisfactory to the Fiscal Agent shall
not create any relationship of trust for or with any of the owners or Holders of
the Notes or coupons, and (ii) any provision to the effect that the Fiscal Agent
may give notice of default or acceleration of the Notes shall neither create any
relationship or trust for or with any of the owners or Holders of Notes or
coupons or require that the Fiscal Agent give any such notice except at the
direction of the Holders of the requisite percentage in principal amount of the
Notes.
13. Notices. All notices to the Holders of Bearer Notes will be published
-------
in an Authorized Newspaper in New York City and in London and, so long as the
Notes are listed by the Issuer on the Luxembourg Stock Exchange and such
Exchange shall so require, in Luxembourg or, if publication in either London or
Luxembourg is not practicable, elsewhere in Europe. Notices will be mailed to
Holders of Registered Notes at their addresses as they appear in the Note
Register. Notices shall be deemed to have been given on the date of publication
or mailing as aforesaid or, if published on different dates, on the date of the
first such Publication.
14. Governing Law. This Note and the interest coupons appertaining
-------------
hereto, if any, shall be construed in accordance with and governed by the laws
of the State of California.
15. Warranty of the Issuer. Subject to due authentication of this Note by
----------------------
the Fiscal Agent, the Issuer hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to have happened
precedent to the creation and issuance of this Note and any appurtenant interest
coupons, and to constitute the same legal, valid and binding obligations of the
Issuer enforceable in accordance with their terms, have been done and performed
and have happened in due and strict compliance with all applicable laws.
16. Capitalized Terms. Capitalized terms used in these Terms and
-----------------
Conditions which are defined on the face of this Note shall have the respective
meanings ascribed thereto on the face of this Note. Capitalized terms used in
these Terms and Conditions or on the face of this Note and not defined herein or
therein shall have the respective meanings ascribed thereto in the Fiscal Agency
Agreement.
17. Required Certification. Anything herein to the contrary
----------------------
notwithstanding, payment of principal upon redemption of this Note, delivery of
Common Stock upon conversion of this Note and payment of cash, if any, in lieu
of fractional shares upon conversion of this Note will be made, in each case,
only upon delivery to a Paying Agent or Conversion Agent, as the case may be, by
the Holder of this Note of a written certification in the form required by
Section 7(e) or 14(1) of the Fiscal Agency Agreement, as the case may be;
provided that no such certification shall be required if delivery thereof shall
have been waived by the Issuer or if the Issuer shall have failed to comply with
its obligations under Section 7(e) or 14(1), as the case may be, of the Fiscal
Agency Agreement.
H-23
18. Descriptive Headings. The descriptive headings appearing in these
--------------------
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions hereof.
H-24
REGISTRAR
Chemical Bank
450 West 33rd Street
New York, New York 10001
PAYING, TRANSFER AND CONVERSION AGENTS
Chemical Bank Banque Internationale Chemical Bank
450 West 33rd Street a Luxembourg S.A. 125 London Wall
New York, New York 10001 2 Boulevard Royale London EC2Y 5AJ
L-2953 England
Luxembourg
H-25
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Conversion Notice
TO HEALTH CARE PROPERTY INVESTORS, INC.
The undersigned owner of this Note hereby irrevocably exercises
the option to convert this note (or, if this Note is a Registered Note, a
portion thereof which is U.S. $1,000 or a multiple thereof (below designated))
into shares of Common Stock of Health Care Property Investors, Inc. (the
"Issuer") in accordance with the terms of this Note and the Fiscal Agency
Agreement referred to therein, and directs that the shares issuable and
deliverable upon conversion, together with any payment for fractional shares, be
issued and delivered to the name indicated below (or, if this is a Registered
Note and no name is indicated below, to the registered Holder hereof). If any
shares issuable upon conversion are not registered in the name of the
undersigned (if this Note is a Bearer Note) or in the name of the registered
Holder of this Note (if this Note is a Registered Note), the undersigned must
deliver a certification to the effect provided in clause (A) of the succeeding
paragraph executed by the person in whose name such shares will be registered.
The undersigned hereby (A) certifies that the conversion of this
Note will not cause any person to beneficially own, directly or indirectly, more
than 9.9% of the outstanding Common Stock of the Issuer (including shares of
Common Stock issuable upon conversion of Notes held by it but excluding shares
of Common Stock issuable upon conversion of Notes held by other investors); and
(B) further certifies that one or more of the following is true (check
applicable box(es)): (i) [_] the beneficial owner of this Note did not acquire
Notes, stock or other securities (other than Common Stock) of the Issuer
(collectively, the "Applicable Securities") at any time when the market value of
the Applicable Securities already beneficially owned by such owner, together
with the cost of any newly acquired Applicable Securities, exceeded the market
value of 5% of the outstanding Common Stock of the Issuer (or the class of
interest required by any final or amended form of temporary U.S. Treasury
Regulation Section 1.897-9T(b), if different); (ii) [_] the beneficial owner of
this Note has not at any time beneficially owned more than 5% of the total
market value of the then outstanding Notes; (iii) [_] the beneficial owner of
this Note is not a United States Alien; or (iv) [_] none of the above
certifications is true. For purposes of the certification in (A) above,
beneficial ownership shall include actual ownership as well as constructive
ownership as set forth in both Section 544 of the United States Internal Revenue
(the "Code") (as modified by Code Section 856(b)(1)) and Code Section 318(a) (as
modified by Code Section 856(d)(5)). For purposes of the certifications in (B)
above, beneficial ownership shall include actual ownership as well as
constructive ownership as set forth in Code Section 318(a) (as modified by Code
Section 897(c)(6)(C)).
If this Note is a Restricted Note, no shares issuable upon
conversion hereof may be registered in a name other than that of the registered
Holder hereof unless such Holder shall have completed the transfer form
required by, and complied with the other transfer requirements of, the
Restricted Notes and the Fiscal Agency Agreement.
Dated:
___________________________________________
Signature(s)
Notice: In the case of a Registered Note,
Fill in for registration the signature(s) on this certification must
of shares: correspond with the name as it appears on
the face of the Note in every particular,
without alteration or enlargement or any
change whatsoever.
___________________________
Principal amount of Registered Note to be
___________________________ converted (if less than all). Each Bearer
Note must be converted in whole. If a
___________________________ Restricted Note is converted in part, the
(Please print name and uncovered portion thereof must be at least
address, including zip $250,000:
code)
___________________________ $__________________________________________
Social Security or other
Taxpayer Identification
Number (If a United States
Person)
- --------------------------------------------------------------------------------
H-26
[Transfer Certificate for Restricted Notes]
In connection with any transfer of all or any portion of this Note
occurring, or if any shares of Common Stock issuable upon conversion hereof are
to be registered in a name other than that of the registered Holder hereof, in
each case prior to the Resale Restriction Termination Date, the undersigned
confirms that such Note or shares, as the case may be, are being transferred:
[_] to a person the undersigned [_] to an institutional investor
reasonably believes is a "qualified which is an "accredited
institutional buyer" as defined in investor" within the meaning of
Rule 144A under the Securities Act Rule 501(a)(1), (2) (3) or (7)
of 1933, as amended (the "1933 under the 1933 Act, that is
Act")(a "QIB"), that is purchasing acquiring for investment
for its own account or for the purposes and not for
account of a QIB to whom notice is distribution in violation of
given that the transfer is being the 1933 Act and that has
made in reliance on Rule furnished to the Registrar a
144A; or signed letter containing
certain representations and
agreements (the form of which
letter can be obtained from the
Registrar); or
[_] pursuant to an offer and sale to a [_] to the Issuer
non-U.S. Person made outside the
UnitedStates within the meaning
of, and in compliance with,
Regulation S under the 1933 Act;
or
[_] pursuant to a registration
statement which has been declared
effective under the 1933 Act; or
Unless one of the boxes above is checked, the Registrar and any Transfer
Agent will refuse to register any of the Notes evidenced by this certificate, or
any shares issuable upon conversion thereof, in the name of any person other
than the registered Holder thereof; provided, however, that the Issuer may, in
its sole discretion, permit the Registrar and any Transfer Agent to register the
transfer of such Notes or shares if it has received such legal opinions as the
Issuer, the Registrar or any Transfer Agent has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from the registration
requirements of the 1933 Act.
Notice: The signature(s) to this
certification must correspond with _______________________________________
the name as it appears on the face of Signature(s)
the within Note in every particular,
without alteration or enlargement or
any change whatsoever. Dated:
- --------------------------------------------------------------------------------
H-27
EXHIBIT I
Transferee Letter of Representations
Health Care Property Investors, Inc.
c/o Chemical Bank, Registrar
Dear Sirs:
This certificate is delivered to request a transfer of $___________ aggregate
principal amount of 6% Convertible Subordinated Notes due 2000 (the "Notes") of
Health Care Property Investors, Inc. (the "Issuer") or ___________ shares of
Common Stock of the Issuer issued upon conversion of the Notes.
Upon transfer the Notes or Common Stock would be registered in the name of the
new beneficial owners as follows:
Name ________________________________________________________
Address: _____________________________________________________
Taxpayer ID Number: ________________________________________
The undersigned represents and warrants to you that it is an institutional
investor which is an "accredited investor" (within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 of Regulation D under the Securities Act of
1933, as amended (the "1933 Act")) that is acquiring the Notes or Common Stock,
as the case may be, for investment purposes and not for distribution in
violation of the 1933 Act.
TRANSFEREE: ________________________________
By ________________________________
Authorized Signatory
I-1
EXHIBIT J
- ------------------------------------------------------------------------
Health Care Property
Investors, Inc.
c/o Chemical Bank, Registrar
In connection with any transfer of all or any portion of this Note
occurring, or if any shares of Common Stock issuable upon conversion hereof are
to be registered in a name other than that of the registered Holder hereof, in
each case prior to the Resale Restriction Termination Date, the undersigned
confirms that such Note or shares, as the case may be, are being transferred:
[_] to a person the undersigned [_] to an institutional investor
reasonably believes is a which is an "accredited
"qualified institutional buyer" as investor" within the meaning of
defined in Rule 144A under the Rule 501(a)(1), (2) (3) or (7)
Securities Act of 1933, as amended under the 1933 Act, that is
(the "1933 Act")(a "QIB"), that is acquiring for investment
purchasing for its own account or purposes and not for
for the account of a QIB to whom distribution in violation of
notice is given that the transfer the 1933 Act and that has
is being made in reliance on Rule furnished to the Registrar a
144A; or signed letter containing
certain representations and
agreements (the form of which
letter can be obtained from the
Registrar); or
[_] pursuant to an offer and sale to a [_] to the Issuer
non-U.S. Person made outside the
United States within the meaning
of, and in compliance with,
Regulation S under the 1933 Act;
or
[_] pursuant to a registration
statement which has been declared
effective under the 1933 Act; or
Unless one of the boxes above is checked, the Registrar and any Transfer
Agent will refuse to register any of the Notes evidenced by this certificate, or
any shares issuable upon conversion thereof, in the name of any person other
than the registered Holder thereof; provided, however, that the Issuer may, in
its sole discretion, permit the Registrar and any Transfer Agent to register the
transfer of such Notes or shares if it has received such legal opinions as the
Issuer, the Registrar or any Transfer Agent has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from the registration
requirements of the 1933 Act.
Notice: The signature(s) to this
certification must correspond with the __________________________________
name as it appears on the face of the Signature(s)
within Note in every particular,
without alteration or enlargement or
any change whatsoever. Dated:
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J-1